Provisional text
JUDGMENT OF THE COURT (Sixth Chamber)
19 June 2025 (*)
( Reference for a preliminary ruling – Prevention of the use of the financial system for the purposes of money laundering and terrorist financing – Directive (EU) 2015/849 – Article 59 – Concept of
‘systematic infringement’ – Penalties – National legislation or national practice allowing a separate fine to be imposed in respect of each infringement established in the course of one and the same investigation – Compatibility with EU law – Minimum harmonisation – Observance of the general principles of EU law – Effective, proportionate and dissuasive sanctions – Principle ne bis in idem )
In Case C‑671/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), made by decision of 8 November 2023, received at the Court on 13 November 2023, in the proceedings
M
v
Lietuvos bankas
THE COURT (Sixth Chamber),
composed of A. Kumin (Rapporteur), President of the Chamber, I. Ziemele and S. Gervasoni, Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        the Lithuanian Government, by V. Kazlauskaitė-Švenčionienė and E. Kurelaitytė, acting as Agents,
–        the Spanish Government, by M. Morales Puerta, acting as Agent,
–        the European Commission, by C. Auvret and J. Jokubauskaitė and G. von Rintelen, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 59 of 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).
2        The request has been made in proceedings between M, an electronic money institution, and Lietuvos bankas (Bank of Lithuania), concerning the latter’s decision to impose eight separate fines on M for having committed eight infringements of the national legislation on the prevention of money laundering and terrorist financing.
Legal context
European Union law
3        Recitals 1, 2 and 59 of Directive 2015/849 state:
‘(1)      Flows of illicit money can damage the integrity, stability and reputation of the financial sector, and threaten the internal market of the Union as well as international development. Money laundering, terrorism financing and organised crime remain significant problems which should be addressed at Union level. In addition to further developing the criminal law approach at Union level, targeted and proportionate prevention of the use of the financial system for the purposes of money laundering and terrorist financing is indispensable and can produce complementary results.
(2)      The soundness, integrity and stability of credit institutions and financial institutions, and confidence in the financial system as a whole could be seriously jeopardised by the efforts of criminals and their associates to disguise the origin of criminal proceeds or to channel lawful or illicit money for terrorist purposes. … At the same time, the objectives of protecting society from crime and protecting the stability and integrity of the Union’s financial system should be balanced against the need to create a regulatory environment that allows companies to grow their businesses without incurring disproportionate compliance costs.
…
(59)      The importance of combating money laundering and terrorist financing should result in Member States laying down effective, proportionate and dissuasive administrative sanctions and measures in national law for failure to respect the national provisions transposing this Directive. … This Directive should therefore provide for a range of administrative sanctions and measures by Member States at least for serious, repeated or systematic breaches of the requirements relating to customer due diligence measures, record-keeping, reporting of suspicious transactions and internal controls of obliged entities. The range of sanctions and measures should be sufficiently broad to allow Member States and competent authorities to take account of the differences between obliged entities, in particular between credit institutions and financial institutions and other obliged entities, as regards their size, characteristics and the nature of the business. In transposing this Directive, Member States should ensure that the imposition of administrative sanctions and measures in accordance with this Directive, and of criminal sanctions in accordance with national law, does not breach the principle of ne bis in idem.’
4        Article 1(1) and (2) of Directive 2015/849 provides:
‘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.’
5        Article 58(1) and (2) of that directive provides:
‘1.      Member States shall ensure that obliged entities can be held liable for breaches of national provisions transposing this Directive in accordance with this Article and Articles 59 to 61. Any resulting sanction or measure shall be effective, proportionate and dissuasive.
2.      Without prejudice to the right of Member States to provide for and impose criminal sanctions, Member States shall lay down rules on administrative sanctions and measures and ensure that their competent authorities may impose such sanctions and measures with respect to breaches of the national provisions transposing this Directive, and shall ensure that they are applied.
…’
6        Article 59 of Directive 2015/849 provides:
‘1.      Member States shall ensure that this Article applies at least to breaches on the part of obliged entities that are serious, repeated, systematic, or a combination thereof, of the requirements laid down in:
(a)      Articles 10 to 24 (customer due diligence);
(b)      Articles 33, 34 and 35 (suspicious transaction reporting);
(c)      Article 40 (record-keeping); and
(d)      Articles 45 and 46 (internal controls).
2.      Member States shall ensure that in the cases referred to in paragraph 1, the administrative sanctions and measures that can be applied include at least the following:
(a)      a public statement which identifies the natural or legal person and the nature of the breach;
(b)      an order requiring the natural or legal person to cease the conduct and to desist from repetition of that conduct;
(c)      where an obliged entity is subject to an authorisation, withdrawal or suspension of the authorisation;
(d)      a temporary ban against any person discharging managerial responsibilities in an obliged entity, or any other natural person, held responsible for the breach, from exercising managerial functions in obliged entities;
(e)      maximum administrative pecuniary sanctions of at least twice the amount of the benefit derived from the breach where that benefit can be determined, or at least EUR 1 000 000.
3.      Member States shall ensure that, by way of derogation from paragraph 2(e), where the obliged entity concerned is a credit institution or financial institution, the following sanctions can also be applied:
(a)      in the case of a legal person, maximum administrative pecuniary sanctions of at least EUR 5 000 000 or 10% of total annual turnover according to the latest available accounts approved by the management body; where the obliged entity is a parent undertaking or a subsidiary of a parent undertaking which is required to prepare consolidated financial accounts in accordance with Article 22 of Directive 2013/34/EU [of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ 2013 L 182, p. 19)], the relevant total annual turnover shall be the total annual turnover or the corresponding type of income in accordance with the relevant accounting Directives according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking;
(b)      in the case of a natural person, maximum administrative pecuniary sanctions of at least EUR 5 000 000, or in the Member States whose currency is not the euro, the corresponding value in the national currency on 25 June 2015.
4.      Member States may empower competent authorities to impose additional types of administrative sanctions in addition to those referred to in points (a) to (d) of paragraph 2 or to impose administrative pecuniary sanctions exceeding the amounts referred to in point (e) of paragraph 2 and in paragraph 3.’
7        Article 60(4) of Directive 2015/849 states:
‘Member States shall ensure that when determining the type and level of administrative sanctions or measures, the competent authorities shall take into account all relevant circumstances, including where applicable:
(a)      the gravity and the duration of the breach;
(b)      the degree of responsibility of the natural or legal person held responsible;
(c)      the financial strength of the natural or legal person held responsible, as indicated for example by the total turnover of the legal person held responsible or the annual income of the natural person held responsible;
(d)      the benefit derived from the breach by the natural or legal person held responsible, in so far as it can be determined;
(e)      the losses to third parties caused by the breach, in so far as they can be determined;
(f)      the level of cooperation of the natural or legal person held responsible with the competent authority;
g)      previous breaches by the natural or legal person held responsible.’
Lithuanian law
The PML/TF Act
8        The Lietuvos Respublikos pinigų plovimo ir teroristų finansavimo prevencijos įstatymas Nr. VIII-275 (Law of the Republic of Lithuania No VIII-275 on the prevention of money laundering and terrorist financing) of 19 June 1997 (Žin., 1997, No 64-1502), as amended by Law No XIII-1440 of 30 June 2018 (‘the PML/TF Law’), transposes Directive 2015/849 into Lithuanian law. Article 34 of that law provides:
‘1.      The following shall be regarded as a serious infringement of this Law:
(1)      failure to comply with the requirements concerning the identification of the customer and the beneficial owner laid down in Articles 9 to 15 of this Law;
(2)      failure to comply with the requirements concerning the reporting of suspicious monetary operations or transactions laid down in Article 16 of this Law;
(3)      failure to comply with the requirements concerning the retention of information laid down in Article 19 of this Law;
(4)      failure by a financial institution or other obliged entity to put in place the internal control procedures provided for in Article 29 of this Law.
2.      The following shall be regarded as a systematic infringement of this Law:
(1)      an infringement of this Law on three or more occasions within one year from the imposition of a penalty for infringement of this Law;
(2)      where infringements of provisions governing the prevention of money laundering and/or terrorist financing are, simultaneously, established, which include a number of sets of requirements:
(a)      requirements concerning the identification of the customer and the beneficial owner laid down in Articles 9 to 15 of this Law;
(b)      requirements concerning the reporting of suspicious monetary operations or transactions laid down in Article 16 of this Law;
(c)      requirements concerning the retention of information laid down in Article 19 of this Law;
(d)      requirements concerning the internal control procedures laid down in Article 29 of this Law.’
9        Article 39(1) of the PML/TF Law states:
‘The Bank of Lithuania and the Finansinių nusikaltimų tyrimo tarnyba [(Financial Crime Investigation Service, Lithuania)] may impose the following fines on a financial institution or a branch of a foreign financial institution:
…
2.      for infringements of this Law, where the financial institution or branch of a foreign financial institution systematically infringes this Law, commits a serious infringement of this Law or repeatedly infringes it within one year from the imposition of a penalty for infringement of this Law, between 0.5 and 10% of the total annual turnover (if the amount corresponding to 10% of total annual turnover exceeds EUR 5 100 000) or between EUR 2 000 and EUR 5 100 000 (if the amount corresponding to 10% of total annual turnover is below EUR 5 100 000).’
The Law on the Bank of Lithuania
10      Article 433 of the Lietuvos Respublikos Lietuvos banko įstatymas Nr. I-678 (Law of the Republic of Lithuania No I-678 on the Bank of Lithuania) of 1 December 1994 (Žin., 1994, No 99-1957), as amended by Law No XIII-1854 of 20 December 2018 (‘the Law on the Bank of Lithuania’), provides:
‘7.      In deciding whether to apply a penalty and in determining the penalty(s) actually applied and the level of any such penalty(s), the Bank of Lithuania shall take into account:
(1)      the gravity and the duration of the infringement;
(2)      the amount of income or any other economic benefit derived by the person from the infringement, of losses avoided or damage caused, in so far as it can be determined;
(3)      the fault committed by a legal person, the form and type of fault committed by a natural person and the financial strength of the person on whom the penalty is imposed;
(4)      any previous infringements committed by the person on whom the penalty is imposed and penalties imposed on that person, as well as that person’s cooperation with the Bank of Lithuania during the investigation;
(5)      any mitigating and aggravating circumstances laid down in this Law and in other laws governing the financial markets;
(6)      the impact on the stability and confidence of the financial markets of the infringements of the legislation established and of the penalties (measures) planned to be imposed;
(7)      any measures taken by the person on whom the penalty is imposed to prevent the infringement reoccurring in the future;
(8)      any other circumstances laid down in the laws governing the financial markets or other significant circumstance.
…
10.      Where the applicable penalty consists of a fine, the amount of the fine imposed shall be determined in three stages, taking into account the basic amount of the fine and the circumstances referred to in paragraphs 7, 8 and 9 of this Article. First, in the light of the gravity and duration of the infringement established, the basic amount of the fine shall be determined, which may not exceed 50% of the maximum amount of the fine which may be imposed in respect of such an infringement. Second, the basic amount of the fine shall, as appropriate, be reduced or increased, taking account of mitigating and aggravating circumstances and other circumstances whether to the advantage or detriment of the party concerned. … Third, the amount of the fine determined in the first and second stages shall, as appropriate, be reduced or increased taking into account the need to ensure the penalty is proportionate and has a dissuasive effect, as well as any other relevant circumstances which were not taken into account in the previous stages. The supervisory authority shall, in accordance with the provisions of this Article, adopt an act laying down the rules for calculating the fine.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
11      M is an electronic money institution which was the subject of an inspection by the Bank of Lithuania covering the period from 1 April 2019 to 31 March 2020. Following that inspection, the Bank of Lithuania, by a decision of 13 November 2020 (‘the decision at issue’), imposed eight fines on M in respect of eight infringements, each consisting of the infringement of a number of provisions of the PML/TF law and of instructions addressed to participants in financial markets seeking to prevent money laundering and/or terrorist financing. The Bank of Lithuania concluded that each of those infringements was serious or relatively serious and that seven of them were also systematic, as provided for in Article 34(2)(2) of the PML/TF Law.
12      As regards the systematic infringements committed by M, the Bank of Lithuania concluded that those infringements, whether they consisted of infringements falling within one or more of the sets of requirements referred to in that provision, were to be classified as ‘separate systematic infringements’, each justifying the imposition of a fine.
13      The Bank of Lithuania calculated the amount of the fines imposed on M on the basis of (i) Article 433 of the Law on the Bank of Lithuania and (ii) the description of the calculation of fines, adopted by the Board of Directors of the Bank of Lithuania, while taking into account the maximum amount of fines laid down in Article 39(1)(2) of the PML/TF Law.
14      In that calculation, the Bank of Lithuania set the basic amount of the fines, for the five infringements regarded as serious at 30% of the maximum fine and, for the three infringements regarded as relatively serious at 20% of the maximum fine. It then took into account the mitigating and aggravating circumstances and the principles of reasonableness and fairness and reduced those basic amounts so that the fines were not disproportionate in the light of M’s total annual turnover, but were sufficiently high to deter M from committing infringements in the future. In those circumstances, the Bank of Lithuania imposed on M five fines of EUR 55 000 each, two fines of EUR 35 000 each and a fine of EUR 25 000, that is to say, a total amount of EUR 370 000.
15      M brought an action against the Bank of Lithuania before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking the annulment in part of the decision at issue, and also applied for an injunction. M argued, in particular, in support of that action, that the Bank of Lithuania could not establish a number of ‘separate systematic infringements’ of the PML/TF law, but rather a ‘single systematic infringement’ of that law and, consequently, could impose only one fine on it.
16      By its judgment of 21 September 2021, that court upheld that action in part and reduced the total amount of the fines imposed on M to EUR 200 000. However, that court rejected M’s argument that there was a ‘single systematic infringement’ of the PML/TF Law.
17      M appealed against that judgment before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), the referring court, seeking, first, to have that judgment annulled, in so far as it dismissed in part the action referred to in paragraph 15 of the present judgment, and, second, to have that action upheld in its entirety. The Bank of Lithuania also appealed against that judgment, seeking to have that judgment annulled and to have the action dismissed in its entirety.
18      M observes that Article 34 of the PML/TF Law provides for both ‘serious infringements’ and ‘systematic infringements’ and argues that the existence of a number of serious infringements must give rise to a finding of a ‘single systematic infringement’ and, consequently, to the imposition of a single fine, the maximum amount of which is set by that law. In addition, under a literal interpretation of Article 34, infringements falling within the same set of requirements are regarded as constituting a single serious infringement. Furthermore, M maintains that the Bank of Lithuania infringed the principle ne bis in idem in failing to find a ‘single systematic infringement’ and in imposing a number of fines on it even though the infringements established related to failure to comply with similar requirements.
19      The Bank of Lithuania, for its part, relying on Article 39(1)(2) of the PML/TF law, maintains that while the intent of the legislature was to provide that a fine may be imposed on a financial institution where that institution has committed at least one serious infringement of that law, there is no similar rule in respect of systematic infringements, with the result that an infringement can be regarded as systematic only where other infringements of that law have also been established, as stated in Article 34(2) of that law. In addition, in the area of money laundering and terrorism financing, to classify a number of serious infringements as a ‘single serious infringement’ or as a ‘single systematic infringement’ would run counter to the objectives pursued by Directive 2015/849, that is to say, the reduction of threats in that area and their negative consequences for the economy and the financial system in the European Union. Indeed, such a classification would encourage participants in financial markets to commit serious and systematic infringements in that area. It would also make it impossible to adapt the fine to the party subject to it by reference to the duration and gravity of each infringement and the other circumstances surrounding the infringement, which would affect the exercise, by the person concerned, of his rights of defence.
20      The referring court believes that the present case raises the question whether Article 59 of Directive 2015/849 ought to be interpreted as precluding national legislation whereby, in the situation where the competent authority of a Member State establishes, in the course of one and the same investigation, a number of infringements of requirements falling either within the same set or sets of requirements listed in Article 59(1)(a) to (d) of that directive, each of those infringements must be classified as a ‘separate systematic infringement’ giving rise to a separate fine, calculated by taking into account the maximum amount of the fine provided for by the national law transposing that directive.
21      The referring court submits that, contrary to Article 59(1) of Directive 2015/849, Article 34(2)(2) of the PML/TF Law provides that, in order to establish that a systematic infringement has occurred, it is necessary to establish infringements of a number of sets of requirements referred to in the latter provision. In the present case, by the decision at issue, the Bank of Lithuania established separate systematic infringements in respect of infringements falling within the same set of requirements and in respect of infringements falling within different sets of requirements. The referring court expresses doubts as to whether a national rule allowing such a decision to be adopted is consistent with Article 59. Where such a national rule is not consistent with that article, it is necessary to examine the criteria which must be taken into account in order to determine whether an infringement is systematic within the meaning of that article. The referring court also raises the question whether Article 39(1)(2) of the PML/TF Law, in so far as it provides for the possibility of imposing a fine for ‘a serious infringement of [that] law’, has correctly transposed Article 59(1), which refers to ‘breaches … that are serious, repeated, systematic infringements or a combination thereof’.
22      The referring court also observes that Directive 2015/849 contains no detailed definition of the concept of a systematic or serious infringement. It also notes that it is apparent from Article 5 and Article 59(4) of that directive that the Member States have a certain margin of discretion to adopt stricter provisions, within the limits set by EU law. However, the referring court argues that Articles 5 and 59 cannot be interpreted as meaning that those Member States have the power to lay down national rules or provisions under which the competent authority of a Member State may impose a separate fine in respect of each of the infringements of the requirements laid down by that directive which have been established in the course of one and the same investigation.
23      The referring court takes the view that, where the infringements referred to in Article 59(1) of Directive 2015/849 have been established, it is appropriate to impose a single administrative pecuniary penalty, the maximum amount of which is set in Article 59(3)(a) of that directive. If separate fines could be imposed in respect of each of the infringements referred to in Article 59(1) of that directive which have been, simultaneously, established, the maximum total amount of the fines imposed at the same time could well exceed the maximum amount of the fine laid down in Article 59(3)(a), which could compromise the principles of legal certainty and proportionality.
24      In those circumstances, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 59 of Directive 2015/849 to be interpreted as precluding national legislation under which, if the competent national authority finds a number of infringements of different sets of requirements under Article 59(1)(a) to (d) of Directive 2015/849 during a single inspection, each of those infringements is considered to constitute a separate systematic infringement, and each of those infringements is subject to a separate fine taking into account the maximum fine laid down in the national law implementing Directive 2015/849?
(2)      Is Article 59 of Directive 2015/849 to be interpreted as precluding national legislation under which, if the competent national authority finds a number of infringements of the same set of requirements under Article 59(1)(a) to (d) of Directive 2015/849 during a single inspection, each of those infringements is considered to constitute a separate systematic infringement and each of those infringements is subject to a separate fine taking into account the maximum fine laid down in the national law implementing Directive 2015/849?
(3)      If at least one of the above questions is answered in the affirmative, what criteria must be taken into account when determining whether an infringement under Article 59 of Directive 2015/849 is systematic?’
Consideration of the questions referred
The first and second questions
25      By its first and second questions, which it is appropriate to consider together, the referring court is, in essence, asking whether Article 59 of Directive 2015/849 must be interpreted as precluding national legislation or a national practice whereby each ‘systematic infringement’ of the requirements set out in paragraph 1 of that article, which has been established by the competent authority of a Member State in the course of one and the same investigation, must be classified as a ‘separate systematic infringement’ giving rise to a separate fine, the amount of which is set based on the maximum amount of the financial penalty which may be imposed under that national legislation or national practice.
26      As a preliminary point, it should be noted that those questions do not relate to whether each of the eight infringements at issue in the main proceedings, taken separately, falls within the concept of a ‘systematic infringement’ as provided for in Article 59(1) of Directive 2015/849, but rather they relate to whether that provision precludes each of the infringements falling within that concept from being classified as a ‘separate systematic infringement’ where they have all been established in the course of one and the same investigation and whether, in that context, the fact that those infringements were committed in breach of requirements falling within one or more of points (a) to (d) of that provision is decisive.
The interpretation of Article 59 of Directive 2015/849
27      According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 18 April 2024, Citadeles nekustamie īpašumi, C‑22/23, EU:C:2024:327, paragraph 30 and the case-law cited).
28      In the first place, Article 59(1) of Directive 2015/849 provides that ‘Member States shall ensure that this Article applies at least to breaches on the part of obliged entities that are serious, repeated, systematic or a combination thereof, of the requirements laid down in: (a) Articles 10 to 24 (customer due diligence); (b) Articles 33, 34 and 35 (suspicious transaction reporting); (c) Article 40 (record-keeping), and (d) Articles 45 and 46 (internal controls)’. In addition, Article 59(2) and (3) of that directive lays down the administrative penalties and measures which the competent authority of a Member State must at least be able to apply in the situations referred to in paragraph 1.
29      In that regard, first of all, it is apparent from the use of the expression ‘at least’ in Article 59(1) to (3) of Directive 2015/849 that that directive provides for only minimum harmonisation as regards both the infringements in respect of which a penalty is to be applied and the penalties to be imposed by the Member States. That interpretation is confirmed by the fact that, in accordance with Article 59(4) of that directive, Member States may empower competent authorities to impose additional types of administrative sanctions in addition to those referred to in that article or to impose administrative pecuniary sanctions exceeding the amounts referred to in that article (judgment of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraph 65).
30      Next, it must be noted that Directive 2015/849 does not define the concept of a ‘systematic infringement’. In addition, it must be observed, as the European Commission has done, that the fact that the requirements laid down by that directive are grouped together in Article 59(1) thereof does not provide any indication as to how to determine the conditions under which a finding of ‘separate systematic infringements’ is to be made. The infringements listed in points (a), (b), (c) and (d) of that provision concern one or more articles falling within Chapters II, IV, V and VI, respectively, of that directive, such that that list reflects solely the structure of that directive.
31      Lastly, contrary to the assertions of the referring court and of M, there is no need to reclassify as a ‘single systematic infringement’ all of the ‘systematic infringements’ and ‘serious infringements’, as provided for in Article 59(1) of Directive 2015/849, which have been established in the course of one and the same investigation by the competent authority of a Member State. There is no basis for such an interpretation in the wording of that provision. Moreover, the use, in that provision, of the words ‘combination [of serious, repeated and systematic breaches]’ permits the inference that an infringement can be both ‘systematic’ and ‘serious’.
32      In the second place, as regards the context of Article 59 of Directive 2015/849, it should be noted that, in accordance with Article 60(4) of that directive, ‘Member States shall ensure that when determining the type and level of administrative sanctions or measures, the competent authorities shall take into account all relevant circumstances’. Under Article 60(4) of that directive, those relevant circumstances include, inter alia, the gravity and duration of the infringement, the losses to third parties and the degree of responsibility and cooperation, as well as the benefit derived from the infringement and previous infringements committed by the natural or legal person held responsible.
33      National legislation or a national practice whereby each of the infringements falling within the concept of a ‘systematic infringement’ as provided for in Article 59(1) of Directive 2015/849, which has been established in the course of one and the same investigation is classified as a ‘separate systematic infringement’, allows the Member State concerned to take account of all those relevant circumstances to a greater extent than national legislation which required those infringements, taken together, to be classified as a ‘single systematic infringement’.
34      Furthermore, the Member States have significant discretion, when transposing Directive 2015/849, as to the appropriate way of implementing the obligation to provide for administrative penalties and measures in the event of infringement of the requirements laid down by that directive (see, by analogy, judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 45).
35      In the third place, the literal and contextual interpretation which may be seen in paragraphs 29 and 32 to 34 of the present judgment is confirmed by a teleological interpretation of Directive 2015/849, which has as it main objective, as is apparent from its title and Article 1(1) and (2) thereof, the prevention of the use of the financial system for the purposes of money laundering and terrorist financing. More specifically, the provisions of that directive seek to establish, taking a risk-based approach, a body of preventive and dissuasive measures to combat money laundering and terrorist financing effectively, in order to prevent, as is apparent from recital 1 of that directive, flows of illicit money from being able to damage the integrity, stability and reputation of the financial sector and threaten the internal market of the European Union as well as international development (judgment of 5 December 2024, MISTRAL TRANS, C‑3/24, EU:C:2024:999, paragraphs 25 and 26 and the case-law cited).
36      To that end, Directive 2015/849 effects a minimum level of harmonisation as regards both (i) infringements of the requirements laid down by that directive for which penalties must be applied and (ii) penalties to be imposed by the Member States (see to that effect, judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 44).
37      In the light of the foregoing, Article 59 of Directive 2015/849 must be interpreted as meaning that, while the Member States must at least apply penalties in respect of the infringements referred to in paragraph 1 thereof, by laying down at the very least the penalties and administrative measures set out in paragraphs 2 and 3 thereof, they may, however, choose to lay down other penalties and measures, including for infringements other than those listed in paragraph 1, since that Article 59 provides for only a minimum level of harmonisation.
38      Accordingly, Directive 2015/849 does not preclude, in principle, national legislation or a national practice which provides that each infringement of a systematic nature which has been established in the course of one and the same investigation, is classified as a ‘separate systematic infringement’ giving rise to a separate fine.
Whether the general principles of EU law have been observed
39      When exercising the discretion accorded to them by Article 59 of Directive 2015/849, the Member States are required to exercise their powers in compliance with EU law and its general principles, and, in particular, in compliance with the principles of proportionality, ne bis in idem and effectiveness, which requires that those penalties are effective and act as a deterrent (see, by analogy, judgment of 17 November 2022, Rodl & Partner, C‑562/20, EU:C:2022:883, paragraph 49 and the case-law cited).
40      That finding is also apparent from the wording of recital 59 and Article 58(1) of Directive 2015/849, under which Member States must lay down effective, proportionate and dissuasive administrative sanctions and measures.
–       The principle of effectiveness
41      As regards the principle of effectiveness, in accordance with settled case-law, the applicable national legislation must not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 137 and the case-law cited).
42      In that regard, it should be recalled that the requirement of effectiveness necessarily covers both (i) the prosecutions of and the penalties for infringements affecting the integrity, stability or reputation of the EU financial system, which Directive 2015/849 seeks to prevent, as is apparent from Article 1(1) of that directive, read in conjunction with recitals 1 and 2 thereof, and (ii) the enforcement of the penalties imposed, since penalties cannot be effective and dissuasive unless they are the subject of effective enforcement. In that context, it is for the national legislature to ensure that the procedural rules applicable to the prosecution of, and the imposition of penalties for, those infringements are not designed in such a way that there arises, for reasons inherent in those rules, a systemic risk that acts constituting such infringements may go unpunished (see, for example, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 192 and 193 and the case-law cited).
43      A measure is effective and dissuasive when it encourages the parties involved to avoid penalties and, if a fine has been imposed, to pay it as quickly as possible (see, to that effect, judgment of 19 October 2016, EL-EM-2001, C‑501/14, EU:C:2016:777, paragraph 47).
44      In the present case, it must be stated that national legislation or a national practice under which each of the systematic infringements established in the course of one and the same investigation is classified as a ‘separate systematic infringement’ giving rise to a separate fine encourages the parties involved to avoid penalties and prevents a systemic risk that punishment will not be imposed, in that such legislation or such a practice discourages the parties involved who have committed such an infringement from committing further infringements. Consequently, subject to verification by the referring court, the national legislation or practice at issue in the main proceedings appears to be consistent with the principle of effectiveness.
–       The principle of proportionality
45      As regards the principle of proportionality, it should be recalled that, according to settled case-law, the administrative or enforcement measures permitted under the relevant national legislation must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by that legislation; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. In particular, the severity of the penalties imposed must be commensurate with the seriousness of the infringements which they seek to curtail, in particular, by ensuring a genuinely dissuasive effect, while respecting the general principle of proportionality (judgments of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraphs 99 and 100, and of 21 November 2024, Еkоstroy,
C‑61/23, EU:C:2024:974, paragraphs 43 and 45 and the case-law cited).
46      Furthermore, the principle of proportionality has to be observed, not only as regards the determination of factors constituting an infringement, but also the determination of the rules concerning the severity of fines and the assessment of the factors which may be taken into account in the fixing of those fines (judgment of 6 October 2021, ECOTEX BULGARIA, C‑544/19, EU:C:2021:803, paragraph 98 and the case-law cited).
47      While it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether those requirements are met in the case in point, the Court, in the context of a reference for a preliminary ruling, may provide the referring court with guidance, on the basis of the documents relating to the main proceedings and the written and oral observations which have been submitted to it, in order to enable that court to resolve the dispute before it (judgment of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraph 71 and the case-law cited).
48      In the present case, the PML/TF Law, which transposes Directive 2015/849, is intended, as is apparent from its title, to prevent money laundering and terrorist financing. It is for that purpose that Article 34(2) of the PML/TF Law defines the concept of a
‘systematic infringement’ of that law and that Article 39(1)(2) of that law lays down the amount of the fines which may be imposed where such a systematic breach has been established. According to the information provided by the referring court, under the national legislation or national practice at issue in the main proceedings, each systematic infringement of that law, established by the competent authority in the course of one and the same investigation, must be classified as a ‘separate systematic infringement’ giving rise to a separate fine, the amount of which is set taking into account the maximum amount laid down in that legislation.
49      As regards, first, the issue of whether the national legislation or national practice at issue in the main proceedings is appropriate for ensuring attainment of the objectives pursued, it should be observed, first, that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner and, second, that, where the objective of national legislation is, as in the present case, the prevention of money laundering and terrorist financing, that legislation is to be regarded as being appropriate for securing the attainment of the preventive objective thus relied on if it helps to reduce the risk of money laundering and terrorist financing (judgment of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraphs 72 and 73 and the case-law cited).
50      More specifically, the provisions of Directive 2015/849, which are preventive in nature, seek to implement, taking a risk-based approach, a body of preventive and dissuasive measures to combat money laundering and terrorist financing effectively, in order to prevent, as is apparent from recital 1 of that directive, flows of illicit money from being able to damage the integrity, stability and reputation of the financial sector and threaten the internal market of the European Union as well as international development (judgment of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraph 75).
51      Those preventive and dissuasive measures to combat money laundering and terrorist financing include the measures referred to in Article 59 of Directive 2015/849, which require Member States to impose penalties in respect of at least the infringements referred to in paragraph 1 of that article and, for that purpose, to lay down at least the penalties referred to in paragraphs 2 and 3 of that article. Those provisions were transposed into Lithuanian law by Article 34 and Article 39(1)(2) of the PML/TF Law.
52      Consequently, it appears that national legislation or a national practice such as that at issue in the main proceedings is appropriate to ensure that the legitimate objectives which it pursues, relating to the prevention of money laundering and terrorist financing, are attained.
53      Second, as regards the necessity of the national legislation or national practice at issue in the main proceedings, it must be stated that, in itself, the fact of making provision to the effect that each systematic infringement of the PML/TF Law, which has been established by the competent authority in the course of one and the same investigation, must be classified as a ‘separate systematic infringement’ giving rise to a separate fine does not go beyond what is necessary to attain the objective pursued by that legislation or practice.
54      In order to prevent money laundering and terrorist financing, it is necessary to deter the parties involved who have infringed the PML/TF Law from committing further infringements of that law in the future. It is necessary for that purpose to provide, where a number of infringements of that law are established in the course of one and the same investigation, that those parties may be subject to either a more serious penalty than for a single infringement or, as is apparent from paragraph 44 of the present judgment, a separate penalty in respect of each of the infringements.
55      Where a financial penalty appears to be milder than the withdrawal or suspension of authorisation, referred to in Article 59(2)(c) of Directive 2015/849 (see, to that effect, judgment of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraph 90), it is, however, for the referring court to satisfy itself that, in a situation where a number of systematic infringements are established in the course of one and the same investigation by the competent authority, the fact of setting, in accordance with the national legislation or national practice at issue in the main proceedings, the amount of the fine for each of those infringements, taking into account the same minimum amount and the same maximum amount as for a single systematic infringement, does not go beyond what is necessary in order to attain the objectives pursued.
56      The possibility of cumulating fines, each of which may not be less than the minimum amount laid down in Article 39(1)(2) of the PML/TF Law, subject only to the maximum amount laid down in that provision multiplied by the number of fines imposed, may give rise, in such a situation, to heavy fines being imposed, which can amount to several million euro.
57      Although, taken in isolation, such features of the calculation of fines imposed to penalise a number of systematic infringements established in the course of one and the same investigation do not necessarily go beyond what is necessary in order to attain the objectives pursued by the national legislation or national practice at issue in the main proceedings, the combination of those various features, in particular the possibility of cumulating fines which may not be below a predefined amount, subject only to an amount corresponding to several times the maximum amount laid down in respect of each of those fines, is nevertheless capable of infringing that requirement (see, to that effect, judgments of 12 September 2019, Maksimovic and Others, C‑64/18, C‑140/18, C‑146/18 and C‑148/18, EU:C:2019:723, paragraphs 42, 47 and 48, and of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraphs 40 and 41).
58      That said, it is apparent from Article 433(10) of the Law on the Bank of Lithuania that the amount of the fine is, as the case may be, to be reduced or increased taking into account the need to ensure the penalty is proportionate. Accordingly, it appears that the Bank of Lithuania has a margin of discretion which allows it to set financial penalties in such a way that they do not go beyond what is necessary to prevent money laundering and terrorist financing, which is, however, for the referring court to ascertain in the specific case.
59      Third, as regards whether the penalties are appropriate in the light of the gravity of the infringements established, it should be recalled that, where national legislation provides for cumulation of penalties, such as the cumulation of a number of financial penalties, the competent authorities are under an obligation to ensure that the severity of all the penalties imposed does not exceed the gravity of the infringement established, failing which the principle of proportionality would be infringed. In addition, the principle of proportionality requires that the individual circumstances of the particular case are taken into account in determining the amount of the penalty (see, to that effect, judgment of 19 October 2023, G. ST. T. (Proportionality of the penalty for trade mark infringement), C‑655/21, EU:C:2023:791, paragraphs 66 and 67 and the case-law cited).
60      In order to assess the proportionality of penalties, account must also be taken of the possibility for national courts to amend the categorisation as set out in the measure adopted by the competent authority of a Member State, that possibility being capable of leading to a less severe penalty, and of the possibility to vary the penalty depending on the gravity of the infringement established (see, to that effect, judgment of 19 October 2023, G. ST. T. (Proportionality of the penalty for trade mark infringement), C‑655/21, EU:C:2023:791, paragraph 68 and the case-law cited).
61      In the present case, first, Article 433(7) and (10) of the Law on the Bank of Lithuania provides that account must be taken, when determining a penalty and setting the amount of the fine, of the individual circumstances of the specific case and of the need to ensure penalties are proportionate, and, second, as is apparent from paragraph 14 of the present judgment, the Bank of Lithuania took account of those circumstances by reducing the basic amount of the fines at issue in the main proceedings on the ground that they were disproportionate in the light of M’s total annual turnover.
62      Furthermore, Article 59(2)(e) and (3) of Directive 2015/849 does not establish a ceiling, but rather a threshold for the maximum amount of the financial penalties which the Member States must be able to impose. The fact remains that it is for the referring court to ascertain whether the severity of all the penalties imposed on M in the present case does not exceed the gravity of the infringements established.
63      If, in the light of the foregoing, the national legislation or national practice at issue in the main proceedings appears to be consistent with the principle of proportionality, it is nevertheless for the referring court to satisfy itself, in those proceedings, that (i) the penalties imposed by the Bank of Lithuania on M do not go beyond what is necessary to prevent money laundering and terrorist financing and (ii) the severity of those penalties is commensurate with the gravity of the infringements which they seek to curtail.
–       The principle ne bis in idem
64      As regards the principle ne bis in idem, the applicability of which must be ascertained by the referring court (see, to that effect, judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C‑27/22, EU:C:2023:663, paragraph 46), it should be recalled that that principle prohibits a duplication of proceedings and of penalties of a criminal nature, for the purposes of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), for the same acts and against the same person. The application of that principle is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, second, that the prior decision and the subsequent proceedings or decisions must concern the same facts (the ‘idem’ condition) (judgment of 25 January 2024, Parchetul de pe lângă Curtea de Apel Craiova, C‑58/22, EU:C:2024:70, paragraphs 46 and 47 and the case-law cited).
65      As regards the ‘bis’ condition, for a person to be regarded as someone who has been ‘finally acquitted or convicted’ in relation to the acts which he or she is alleged to have committed, within the meaning of Article 50 of the Charter, it is necessary, first, that further prosecution has been definitively barred, in accordance with national law, and, second, that that decision was taken after a determination as to the merits of the case concerned (judgment of 25 January 2024, Parchetul de pe lângă Curtea de Apel Craiova, C‑58/22, EU:C:2024:70, paragraphs 48 and 53 and the case-law cited).
66      Under settled case-law, Article 50 of the Charter is not limited to proceedings and penalties which are classified as ‘criminal’ by national law, but extends – regardless of such a classification in national law – to proceedings and penalties which must be considered as being criminal in nature on account of the intrinsic nature of the infringement or the degree of severity of the penalty which the person concerned is liable to incur (see, to that effect, judgment of 30 January 2025, Engie România, C‑205/23, EU:C:2025:43, paragraph 49 and the case-law cited).
67      In addition, it must be noted that, according to the Court’s settled case-law, the relevant criterion for the purposes of assessing the existence of the same offence, within the meaning of Article 50 of the Charter, is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned. Therefore, that article prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes (judgment of 25 January 2024, Parchetul de pe lângă Curtea de Apel Craiova, C‑58/22, EU:C:2024:70, paragraph 67 and the case-law cited). By contrast, the principle ne bis in idem is not intended to be applied where the facts in question are not identical but merely similar (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 36).
68      In order to assess whether such a set of concrete circumstances exists, the competent national courts must determine whether the material facts in the various proceedings constitute a set of facts which are inextricably linked together in time, in space and by their subject matter (judgment of 14 September 2023, Bezirkshauptmannschaft Feldkirch, C‑55/22, EU:C:2023:670, paragraph 57 and the case-law cited).
69      In the present case, contrary to M’s assertions, there is nothing in the file before the Court to support the conclusion that the principle ne bis in idem has been breached. While it is true that it cannot be ruled out, from the outset, that the fines at issue in the main proceedings may be regarded as criminal in nature in the light of the degree of their severity, since Article 58(2) of Directive 2015/849 allows Member States to lay down and impose criminal penalties, it must however be stated, first, that it is not apparent from that file that a fine was imposed on M by means of a final decision prior to the decision at issue concerning material facts which are identical to the facts which were the subject of that decision. Second, the various infringements established in that decision involved the infringement of various provisions of the PML/TF Law and failure to comply with the instructions given to participants in financial markets seeking to prevent money laundering and/or terrorist financing and, consequently, involved facts which are only similar and not identical.
70      It is apparent from the case-law that the principle ne bis in idem does not apply to a situation in which penalties for a number of infringements of various provisions of national law transposing EU law were imposed by the same authority in a single decision (see, to that effect, judgment of 4 March 2020, Marine Harvest v Commission, C‑10/18 P, EU:C:2020:149, paragraph 78).
71      In the light of all the foregoing considerations, the answer to the first and second questions is that Article 59 of Directive 2015/849 must be interpreted as not precluding national legislation or a national practice whereby each ‘systematic infringement’ of the requirements set out in Article 59(1), which has been established by the competent authority of a Member State in the course of one and the same investigation, must be classified as a ‘separate systematic infringement’ giving rise to a separate fine, the amount of which is set based on the maximum amount of the financial penalty which may be imposed under that national legislation or national practice, in so far as the general principles of EU law are observed, in particular the principles of effectiveness and proportionality.
The third question
72      In view of the answer to the first and second questions, there is no need to answer the third question.
Costs
73      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Sixth Chamber) hereby rules:
Article 59 of 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,
must be interpreted as not precluding national legislation or a national practice whereby each ‘systematic infringement’ of the requirements set out in Article 59(1), which has been established by the competent authority of a Member State in the course of one and the same investigation, must be classified as a ‘separate systematic infringement’ giving rise to a separate fine, the amount of which is set based on the maximum amount of the financial penalty which may be imposed under that national legislation or national practice, in so far as the general principles of EU law are observed, in particular the principles of effectiveness and proportionality.
[Signatures]
*      Language of the case: Lithuanian.