European Commission v Romania.
Date: 2020-07-16
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.
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).
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).
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.
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).
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).
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).
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.
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.
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.
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.
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).