1.

In the present case, the European Commission has brought infringement proceedings against Ireland 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 Ireland a lump sum payment, ultimately set at EUR 2 766 992.00, for breach of its obligation to notify measures transposing Directive 2015/849. It also initially requested a daily penalty payment of EUR 17 190.60, 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 Romania (C‑549/18), 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. The similarity of the issues arising in these cases will therefore allow me to refer, on certain points, to the arguments set out in my Opinion in that parallel case in order to avoid repetition. 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 Ireland 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.

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.’

8.

Having been notified by the deadline of 26 June 2017 of a single transposition measure, representing the transposition of the first subparagraph of Article 30(1) of Directive 2015/849, the Commission sent Ireland a letter of formal notice dated 18 July 2017, inviting Ireland to notify it of the transposition measures still required within two months of receipt of that letter.

9.

In its response by letter dated 13 September 2017, Ireland informed the Commission of the progress made on the measures to transpose Directive 2015/849.

10.

By reasoned opinion dated 8 March 2018, the Commission stated that Ireland had still not notified it of any further measures transposing Directive 2015/849, and requested it to do so within a period of two months of receipt of that reasoned opinion.

11.

In its response to that reasoned opinion by letter dated 4 May 2018, Ireland informed the Commission of the further progress made on the measures to transpose Directive 2015/849.

12.

Taking the view that Ireland had still not adopted any additional measures transposing Directive 2015/849 or given notification of such 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:

14.

In its defence, lodged on 14 November 2018, Ireland claims that the Court should:

15.

In its reply, lodged on 18 January 2019, the Commission indicated that, notwithstanding the transposition measures notified on 29 November 2018, the adoption of further measures remained necessary in order to transpose Directive 2015/849 fully in respect of 11 provisions of that directive. ( 5 ) Consequently, while the Commission maintained the form of order sought, it reduced to EUR 7 358.40 the amount of the daily penalty payment sought, and requested the Court to impose a lump sum of EUR 2 439 922.80 plus EUR 2 014.80 per day for failure to notify transposition measures since 29 November 2018.

16.

In its rejoinder, lodged on 4 March 2019, Ireland contended that it fulfilled its obligation to transpose Directive 2015/849 by virtue of the measures notified on 29 November 2018, while stating that it had taken further steps to address the Commission’s concerns raised in the reply.

17.

By letter dated 27 November 2019, the Commission informed the Court that, notwithstanding the explanations set out in the rejoinder and further transposition measures notified on 30 January 2019 in respect of Article 31(1), (2), (3) and (7) of Directive 2015/849, and on 27 March 2019 in respect of Article 30(1), second subparagraph, (2) and (7) of that directive, the adoption of further measures remained necessary in order to transpose Articles 47(2) and 48(5) to (8) of Directive 2015/849. Thus, while maintaining the form of order sought, the Commission reduced to EUR 2 452.80 the amount of the daily penalty payment sought, and requested the Court to impose a lump sum of EUR 2 598 420.40 plus EUR 671.60 per day for failure to notify transposition measures since 27 March 2019.

18.

By letter dated 6 December 2019, Ireland informed the Court that it had provided the Commission with updated correlation tables on 22 November 2019 and 3 December 2019, the former of which was not taken into account in the Commission’s letter of 27 November 2019.

19.

By decisions of 11 and 12 February 2019, Estonia and France were granted leave to intervene in support of the form of order sought by Ireland. The Commission and Ireland submitted observations on the statements in intervention submitted by Estonia and France on 24 May 2019 and 5 June 2019, respectively.

20.

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

21.

At the hearing, the Commission asserted that, having regard to the transposition measures notified on 22 November 2019 in respect of Article 48(5) to (8) of Directive 2015/849 and those notified on 3 December 2019 in respect of Article 47(2) of that directive, Ireland had fulfilled its obligations. Consequently, the Commission partially withdrew its action, in so far as it no longer sought the imposition of a daily penalty payment. Taking 3 December 2019 as the day on which Ireland fulfilled its obligations, the Commission fixed the lump sum requested at EUR 2 766 992.00.

22.

The Commission submits that, having notified a single measure transposing one part of Article 30(1) of Directive 2015/849, Ireland failed to adopt, by the deadline of 26 June 2017 set in Article 67 of Directive 2015/849, all the necessary transposition measures or to notify it of those measures. It also disputes that national measures transposing the previous directive on anti-money laundering ( 6 ) ensure transposition of Directive 2015/849, since that directive introduces significant changes. Ireland never notified any of those measures in the framework of the transposition of Directive 2015/849. Nor did Ireland provide, pursuant to recital 67 thereof, a correlation table explaining the relationship between the provisions of that directive and the corresponding provisions of those national measures.

23.

The Commission maintains that, having regard to the transposition measures notified on 29 November 2018, Ireland largely transposed Directive 2015/849, but that certain transposition gaps remained. It underlines that the extension of the time limit for transposition provided by Directive 2018/843 relates exclusively to the obligation to set up the central registers in Articles 30 and 31 of Directive 2015/849, and not the other obligations set out in that directive, including in those articles. As it emphasised at the hearing, Ireland was obliged to adopt transposition measures to address shortcomings in respect of Articles 47(2) and 48(5) to (8) of Directive 2015/849, ( 7 ) and thus fulfilled its obligations with measures notified at the latest on 3 December 2019.

24.

Ireland submits that the transposition of Directive 2015/849 required the enactment of legislation which was expected to be finished in November 2018. It undertook a lengthier process of transposition to ensure the effectiveness of that directive, and the draft bill was already at an advanced stage when the Commission lodged the present action.

25.

Ireland contends that Directive 2015/849 largely restates, with amendments, provisions contained in the previous anti-money laundering directive and thus measures transposing that directive ensure partial transposition of Directive 2015/849. As it emphasised at the hearing, it fulfilled its obligations by virtue of the transposition measures notified on 29 November 2018. It disputes the alleged transposition gaps identified by the Commission and, in any event, those gaps are marginal, and Ireland has made efforts to address the Commission’s concerns.

26.

The Commission submits, based on its Communication on the implementation of Article 260(3) TFEU, ( 8 ) that Ireland’s failure to fulfil its obligation to notify transposition measures under Article 67 of Directive 2015/849 falls within the scope of Article 260(3) TFEU. As indicated in a subsequent Communication, ( 9 ) its adjusted practice of generally requesting a lump sum and a penalty payment applies to the present case.

27.

The Commission argues that Article 260(3) TFEU confers on it wide discretionary powers, analogous to the discretion whether to initiate proceedings under Article 258 TFEU, ( 10 ) and thus it is not required to set out specific reasons for its decision to have recourse to Article 260(3) TFEU. It also disputes that it is acting in a disproportionate manner in proposing financial penalties in the present case, and emphasised at the hearing that proportionality is taken into account, first, at the threshold determination of seeking financial penalties as a general rule and, second, in the individual assessment of the seriousness of the infringement in each case.

28.

Regarding the determination of financial penalties, the Commission contends that the method of calculating penalties under Article 260(3) TFEU should be the same as that applied under Article 260(2) TFEU. ( 11 ) On that basis, the Commission proposes a lump sum, set at EUR 2 766 992.00, to take effect on the date of delivery of the Court’s judgment. It calculates that amount based on a daily amount multiplied by the number of days that the infringement persisted, ( 12 ) comprising the period between the day after the time limit for transposition set in Directive 2015/849 expired (27 July 2017) and the day before the infringement came to an end (2 December 2019), taking the view that Ireland fulfilled its obligations on 3 December 2019. ( 13 ) The Commission emphasises that it is appropriate to calculate the duration of the infringement from the date of expiry of the transposition deadline, since it is on that date that the Member State’s failure to notify the transposition measures arises, ( 14 ) and Ireland was duly informed of its approach.

29.

More specifically, in calculating the daily amount for the lump sum, which is based on the standard flat rate multiplied by the seriousness coefficient and the ‘n’ factor, ( 15 ) the Commission proposes a coefficient of 7, on a scale of 1 to 20, for the seriousness of the infringement. This is based on the established parameters relating to, first, the importance of Directive 2015/849 as a key instrument to ensure effective protection of the European financial market against threats posed by money laundering and terrorist financing and, second, the effects on public and private interests by virtue of the impact of Ireland’s failure to transpose that directive on the European financial market, investors and citizens. The Commission regards Ireland’s notification of measures transposing the first subparagraph of Article 30(1) of Directive 2015/849 and the extension of the transposition deadline set in Directive 2018/843 for establishing the central registers under Articles 30 and 31 of Directive 2015/849 as mitigating factors, but disputes the additional factors put forward by Ireland.

30.

Furthermore, as indicated in its letter of 27 November 2019 and at the hearing, the Commission reduced, in light of Ireland’s notification of further transposition measures, the seriousness coefficient to 2, as from 29 November 2018, and to 1, as from 27 March 2019. Therefore, the Commission calculates the lump sum sought for each period according to the following formula:

standard flat rate × seriousness coefficient × ‘n’ factor × number of days

As such, from 27 June 2017 to 28 November 2018, the lump sum was calculated as follows: 230 × 7 × 2.92 × 519 = EUR 2 439 922.80; from 29 November 2018 to 26 March 2019: 230 × 2 × 2.92 × 118 = EUR 158 497.60; and from 27 March 2019 to 2 December 2019: 230 × 1 × 2.92 × 251 = EUR 168 571.60. To that end, the total lump sum sought by the Commission amounts to EUR 2 766 992.00.

31.

Ireland, supported by Estonia and France, submits that, since Irish law ensures partial transposition of Directive 2015/849, Article 260(3) TFEU does not apply. Moreover, the Commission’s request for financial penalties is not consistent with the principle of proportionality or the duty of sincere cooperation. Its systematic approach to the imposition of penalties is erroneous, as the Commission is required to analyse the circumstances of each case to substantiate its decision to have recourse to Article 260(3) TFEU. As transposition is now complete, the imposition of a lump sum is not likely to achieve a deterrent effect, and may motivate the Member States to compromise the quality of transposition measures.

32.

Regarding the determination of financial penalties, Ireland, supported by France, argues that the method for calculating penalties under Article 260(2) and (3) TFEU should not be the same, and where compliance takes place by the time of the Court’s judgment, a lump sum is not necessary. In the alternative, the amount of the lump sum should be reduced. In particular, it is inappropriate to use the day after the expiry of the transposition deadline for the duration of the infringement, since Ireland did not consider the situation to fall under Article 260(3) TFEU at that time. The seriousness coefficient is also inappropriate, in view of the measures notified on 29 November 2018. Ireland contends that certain mitigating factors, in addition to those proposed by the Commission, should be taken into account, including the fact that the transposition measures were adopted before the Court’s judgment, that primary legislation was used for transposition, and that Ireland prioritised progress of the transposition measures through the legislative process, kept the Commission informed and abided by an indicative timetable provided to the Commission prior to the commencement of proceedings.

33.

It should be recalled that, in infringement proceedings under Article 258 TFEU, the notification carried out by the Member States, in accordance with the principle of sincere cooperation under Article 4(3) TEU, must contain sufficiently clear and precise information on the substance of the national rules transposing a directive. Therefore, notification, to which a correlation table may be added, must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by that directive. A Member State’s failure to fulfil that obligation, whether by providing no information at all, partial information or insufficiently clear and precise information, may of itself justify recourse to Article 258 TFEU. ( 16 )

34.

In particular, the Court has held that, although the transposition of a directive may be carried out by means of domestic rules in force, a Member State is not absolved from the formal obligation to notify, even if that Member State already notified those rules in the context of the transposition of previous directives. ( 17 ) Additionally, where a directive provides that the measures transposing it must contain a reference to it or are to be accompanied by such a reference on their official publication, it is necessary to adopt specific transposition measures. ( 18 )

35.

It is also settled that, in an action based on Article 258 TFEU, the question whether a Member State has failed to fulfil its obligations is determined by reference to the situation prevailing in the Member State at the end of the period set in the reasoned opinion, and the Court cannot take account of any subsequent changes. ( 19 )

36.

In the present case, it is common ground that Ireland failed to adopt all the measures necessary to transpose Directive 2015/849 and to notify those measures by the expiry of the period set in the reasoned opinion, namely 9 May 2018. ( 20 ) Indeed, it is apparent that, aside from a single transposition measure, the measures fully transposing that directive were adopted and notified after that date (see points 8, 15 to 17 and 21 of this Opinion), and thus cannot be taken into consideration.

37.

Regarding the measures which were in force in Ireland at the expiry of the transposition deadline of 26 June 2017, I am not persuaded by the arguments put forward by Ireland before the Court that those measures may be taken into account in the assessment of the failure to fulfil obligations in the present case. In particular, given that Article 67(1) of Directive 2015/849 requires the Member States to ensure that their measures transposing that directive contain a reference to it or that such a reference is made when they are officially published (see points 6 and 7 of this Opinion), it is necessary for Ireland to adopt specific transposition measures. Ireland does not claim that the measures fulfil that condition. It is also not apparent, according to the information before the Court, that Ireland provided a correlation table, indicating the relationship between the provisions of Directive 2015/849 and the corresponding provisions of those national measures, in accordance with recital 67 thereof. In any event, Ireland does not dispute that those measures did not transpose Directive 2015/849 in full.

38.

I therefore propose that the Court declare that, by failing to adopt within the prescribed period all the measures necessary to transpose Directive 2015/849 or, in any event, by failing to notify those measures, Ireland failed to fulfil its obligations under Article 67(1) of that directive.

39.

The central issues in this case concern, first, the Commission’s justification of its decision to request financial penalties under Article 260(3) TFEU and, second, the proportionality of the lump sum payment which, in turn, raises some general questions relating, in particular, to the method for calculating lump sum payments and the applicability of the case-law on Article 260(2) TFEU. The parties also dispute whether Article 260(3) TFEU applies to this case, namely whether it extends to a Member State’s partial failure to notify transposition measures.

40.

Since the judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks) ( 21 ) has particular pertinence for these issues, it is necessary, first, to provide some preliminary observations concerning that judgment (section 1), before considering the Commission’s discretion to request financial penalties pursuant to Article 260(3) TFEU, the assessment of financial penalties under that provision and the imposition of a lump sum payment in the present case (sections 2, 3 and 4).

41.

It should be borne in mind that the judgment of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks) ( 22 ) mainly addressed the material scope of Article 260(3) TFEU and the assessment of penalty payments under that provision. In particular, the Court held that the expression ‘obligation to notify measures transposing a directive’ in Article 260(3) TFEU means that ‘the Member States are required to state, for each provision of the directive, the national provision or provisions ensuring its transposition. Once notified, where relevant in addition to a correlation table, it is for the Commission to establish, for the purposes of seeking the financial penalty to be imposed on the Member State in question laid down in that provision, whether certain transposing measures are clearly lacking or do not cover all of the territory in question’. ( 23 )

42.

The Court also held that the imposition of penalty payments under Article 260(3) TFEU is justified only if the failure continues up to the time of the Court’s examination of the facts, and that the case-law relating to Article 260(2) TFEU must be applied by analogy to Article 260(3) TFEU, as penalty payments under both provisions seek to achieve the same objective. Taking account of its discretion in the matter and the criteria in the case-law on Article 260(2) TFEU, the Court imposed a daily penalty payment of EUR 5000 on Belgium for failing to adopt and notify transposition measures relating to three articles of the directive in question in respect of one of its regions. ( 24 )

43.

On this basis, it should be observed that, in Commission v Belgium (Article 260(3) TFEU — High-speed networks), the Court has interpreted the material scope of Article 260(3) TFEU to cover a Member State’s failure to notify measures constituting an incomplete (partial) transposition of the directive in question. ( 25 ) Also, the Court has utilised the same method for assessing penalty payments under Article 260(2) and (3) TFEU, placing emphasis on its discretion and the objective sought by that type of penalty. I will come back to this later in my analysis (see points 53 and 54 of this Opinion).

44.

It follows from the judgment in Commission v Belgium (Article 260(3) TFEU — High-speed networks) ( 26 ) that the claim put forward by Ireland, supported by Estonia and France, that since Ireland partially transposed Directive 2015/849, Article 260(3) TFEU does not apply, cannot be accepted. Article 260(3) TFEU is applicable to these proceedings, ( 27 ) given that the Commission has established that Ireland failed to fulfil its notification obligation in full. Indeed, transposition measures were clearly lacking, in view of Ireland’s notification of measures transposing a single provision of Directive 2015/849, and the pre-existing national measures did not suffice (see points 36 and 37 of this Opinion).

45.

In the present case, Ireland, joined by Estonia and France, argues in substance that the imposition of financial penalties is not justified, since the Commission must give reasons, in light of the particular circumstances of the case, for its decision to have recourse to Article 260(3) TFEU.

46.

In light of the arguments which I advanced in points 43 to 49 of my Opinion in Commission v Romania (C‑549/18), I do not agree.

47.

In particular, it should be considered that the possibility granted to the Commission to request financial penalties under Article 260(3) TFEU is linked to the Commission’s wide discretion recognised in the case-law to initiate proceedings under Article 258 TFEU. ( 28 ) As the Court has held, the Commission ‘is not required to justify its decision, nor will the admissibility of the action be dependent upon the circumstances dictating its choice. … The Court of Justice need only ensure that the procedure adopted may, in principle, be employed with regard to the alleged infringement’. ( 29 ) The same should apply, in my view, to the Commission’s decision to request financial penalties under Article 260(3) TFEU.

48.

This is further supported by the wording of Article 260(3) TFEU (‘may, when it deems appropriate, specify the amount of the lump sum or penalty payment’), on the basis of which the Commission is granted a discretion to decide whether it will ask for financial penalties pursuant to Article 260(3) TFEU in the proceedings based on Article 258 TFEU, and is not obliged to do so. ( 30 ) However, it cannot be inferred from that wording that the Commission would be required to justify its decision to have recourse to Article 260(3) TFEU where it is not required to do so under Article 258 TFEU, given that the context of Article 260(3) TFEU includes the procedure under Article 258 TFEU. ( 31 )

49.

In any event, as indicated by the Commission (see point 27 of this Opinion), the Commission’s decision will have to be reasoned in so far as it contains an individual assessment of the financial penalties sought, in light of the circumstances of the case, and in particular the application of the criteria used for determining the amount of the financial penalties requested. This effectively enables the Member State to understand and contest the Commission’s assessment of the financial penalties requested before the Court, as in the present case.

50.

In the light of the foregoing, I take the view that the Commission is not required to give reasons when it resorts to Article 260(3) TFEU.

51.

On the basis that the Commission’s decision to request financial penalties in the present case complies with Article 260(3) TFEU, I turn to the assessment of financial penalties under that provision, in light of the arguments which I propounded in points 50 to 59 of my Opinion in Commission v Romania (C‑549/18).

52.

In particular, as I already pointed out in my Opinion in Commission v Spain (Article 260(3) TFEU — Mortgage credit), ( 32 ) the Commission should be entitled to use the same method to calculate the financial penalties which it proposes under Article 260(2) and (3) TFEU, given that those penalties are the same, the objectives pursued by those two provisions are similar, and this promotes a coherent approach and foreseeability for the Member States. In that regard, the fact that Article 260(2) TFEU sanctions a ‘double infringement’ of EU law and non-compliance with the judgment under Article 258 TFEU, whereas Article 260(3) TFEU sanctions a single infringement of EU law based on failure to fulfil the notification obligation, does not, in my view, diminish the fact that both provisions concern infringements grounded on primary Union law (see point 33 of this Opinion).

53.

In any event, the Court is not bound by the Commission’s proposals regarding the imposition of financial penalties or its method of calculation under Article 260(3) TFEU. ( 33 ) As the Court recognised in Commission v Belgium (Article 260(3) TFEU — High-speed networks), ( 34 ) in the context of Article 260(3) TFEU, it is for the Court in each case to determine, in 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 appropriate, in particular, for preventing the recurrence of similar infringements of EU law. The Court has further held, in the context of Article 260(2) TFEU, that the Commission’s suggestions and guidelines in its communications are not binding on the Court; they merely constitute a useful point of reference and ensure that the action brought is transparent, foreseeable and consistent with legal certainty. ( 35 )

54.

Consequently, it may be considered to follow from Commission v Belgium (Article 260(3) TFEU — High-speed networks) ( 36 ) that the case-law on Article 260(2) TFEU should be applied by analogy to Article 260(3) TFEU, in so far as the financial penalties under both provisions seek to achieve the same objectives: the imposition of a penalty payment is 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, whereas 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.

55.

Moreover, in the case-law concerning Article 260(2) TFEU, starting with the seminal judgment of 12 July 2005 in Commission v France, ( 37 ) the Court has held that it may impose both a lump sum and a penalty payment, ( 38 ) and that it may impose a financial penalty not suggested by the Commission, on the grounds that ‘the appropriateness of imposing a financial penalty and the choice of the penalty most suited to the circumstances of the case can be appraised only in the light of the findings made by the Court in the judgment to be delivered under Article [260(2) TFEU] and therefore fall outside the political sphere’. ( 39 ) Thus, the question arises whether the Court’s case-law on Article 260(2) TFEU is applicable by analogy to Article 260(3) TFEU in respect of the Court’s discretion to impose both a lump sum and a penalty payment or a financial penalty not suggested by the Commission.

56.

In that regard, I maintain the position, as advanced in my Opinion in Commission v Spain (Article 260(3) TFEU — Mortgage credit), ( 40 ) that the Court has discretion pursuant to Article 260(3) TFEU to impose both a lump sum and a penalty payment or a financial penalty not suggested by the Commission, subject to the ceiling placed on the amount of the financial penalty under that provision. In particular, it may be inferred from the wording of Article 260(3) TFEU (‘not exceeding the amount specified by the Commission’), which refers to the amount, and not the choice, of the financial penalty to be imposed, that the Court may not impose a financial penalty of a higher amount than that suggested by the Commission. However, in my view, this does not divest the Court of its discretion to determine the appropriate financial penalty in all situations. Thus, depending on the circumstances, the Court may impose a financial penalty not suggested by the Commission, or both a lump sum and a penalty payment, at the same amount as, or at a lower amount than, the amount ‘specified by the Commission’, which does not have to be the total amount eventually imposed on the Member State concerned.

57.

Moreover, such an interpretation serves the objectives of Article 260(3) TFEU, taking into account the purpose of having different financial penalties in the Treaties. As noted in point 42 of this Opinion, where a Member State fulfils its notification obligation in the course of the proceedings, and thus before the Court’s examination of the facts, a penalty payment cannot be imposed. Yet, a lump sum remains viable in order to address the impact of that infringement on public and private interests and deter that infringement from recurring. Indeed, such a situation explains the Commission’s adjusted practice of generally requesting a lump sum and a penalty payment in cases brought under Article 260(3) TFEU (see point 26 of this Opinion), as illustrated by this action. Nonetheless, were the Commission to suggest only one type of penalty, the Court’s discretion to impose a different penalty or both a lump sum and a penalty payment where necessary, subject to the ceiling set out in Article 260(3) TFEU, would ensure that that provision is not deprived of useful effect.

58.

In light of the case-law concerning Article 260(2) TFEU, ( 41 ) the imposition of a lump sum and the fixing of that sum under Article 260(3) TFEU depend in each case on all the relevant factors relating to the characteristics of the infringement established and the conduct of the Member State concerned. In exercising its discretion, the Court decides whether to impose a lump sum and, if so, determines the amount which is appropriate to the circumstances and proportionate to the infringement. Relevant factors in that regard include the seriousness of the infringement, its duration and the Member State’s ability to pay.

59.

It also follows from that case-law that a lump sum is based on the 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. ( 42 ) An order to pay a lump sum cannot be made automatically, since the Court has a wide discretion to decide whether it is necessary to impose such a penalty. ( 43 )

60.

On this basis, it should be observed that the Court has considerable discretion under Article 260(3) TFEU to impose a lump sum, where appropriate, based on the circumstances of the case and the conduct of the Member State concerned, in order to address the effects on public and private interests of the Member State’s failure to fulfil the notification obligation. The fact that the Court has considered it appropriate to impose a lump sum in the context of Article 260(2) TFEU ‘in particular where the breach has persisted for a long period’, as noted in point 59 of this Opinion, does not preclude the Court from imposing a lump sum in other situations, where necessary, for preventing the recurrence of similar infringements of EU law.

61.

Furthermore, in light of the different aims sought by penalty payments and lump sum payments (see point 54 of this Opinion), it is clear that while an order for a penalty payment, which is essentially intended to be coercive as regards the ongoing breach, is made only in so far as the breach persists, there is no requirement for the same approach to be taken with regard to the imposition of a lump sum payment. ( 44 ) Thus, contrary to the submissions of France and Ireland, the fact that a Member State may fulfil its obligations in the course of the proceedings does not deprive the lump sum of its purpose.

62.

In the present case, it should be considered that the imposition of a lump sum payment is appropriate as a dissuasive measure. The total amount proposed by the Commission (EUR 2 766 992.00) can be reduced (to EUR 2 011 919.60) if the Commission’s updated figures are applied, ( 45 ) and possibly further if certain factors are taken into account. Consequently, in light of all the circumstances of the present case, I propose that the Court impose on Ireland a lump sum payment of EUR 1500000. ( 46 )

63.

In the first place, regarding the seriousness of the infringement, the Court has recognised in Commission v Belgium (Article 260(3) TFEU — High-speed networks), ( 47 ) in the context of imposing a penalty payment under Article 260(3) TFEU, that the obligation to adopt the 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 undoubtedly serious’. This seems to me to be applicable to the present case involving the imposition of a lump sum payment.

64.

Moreover, if the Court takes into account the criteria adopted by the Commission for the determination of the lump sum payment, the Commission’s assessment of seriousness does not appear to be the result of any error, having regard to the importance of the provisions of EU law infringed and the effects on public and private interests. It should be pointed out that Directive 2015/849 is a key legal instrument in the prevention of the use of the Union financial system for the purposes of money laundering and the financing of terrorism. ( 48 ) Situated in the context of establishing an effective and genuine Security Union, ( 49 ) that directive builds on previous directives and international activities in the field in order to strengthen the legal framework for combating money laundering and terrorist financing in the EU. ( 50 ) Similar to what the Court has held in respect of other directives in the internal market context, ( 51 ) Ireland’s failure to adopt and notify all the measures transposing Directive 2015/849 may be considered to impact the proper functioning of the internal market and thus has a certain degree of seriousness. ( 52 )

65.

The effects of Ireland’s failure to transpose Directive 2015/849 on public and private interests may also be considered significant, given that, as indicated by the Commission, that failure poses risks to the integrity and functioning of the EU financial system, making it vulnerable to money laundering and terrorist financing and affecting investors and citizens. This is illustrated, for example, by the European Parliament’s resolution of 19 September 2019 on the state of implementation of the Union’s anti-money laundering legislation, ( 53 ) which, inter alia, welcomed the Commission’s initiation of infringement proceedings against Member States which had not transposed Directive 2015/849, and urged those Member States to do so as soon as possible.

66.

In that connection, I am not persuaded by Ireland’s assertion that the effects on public and private interests are overstated, since the pre-existing national measures in the field ensure partial transposition of Directive 2015/849 and thereby enable the objectives of that directive to be broadly achieved. The Court has rejected similar arguments based on the fact that such measures did not meet the requirements of the directive concerned; otherwise, the Member State would not have been found in breach of its obligation to transpose. ( 54 ) Moreover, the fact that Ireland chose to transpose Directive 2015/849 by primary legislation (see point 32 of this Opinion) does not seem to me to constitute a mitigating factor, given that a Member State cannot plead practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law. ( 55 )

67.

It should also be pointed out that Ireland has previously been condemned by the Court under Article 258 TFEU for failure to transpose the previous anti-money laundering directives on time. ( 56 )

68.

That said, there are certain mitigating factors which should be considered in the present case. In particular, as indicated by the Commission, the extent of transposition should be taken into account when determining the seriousness of the failure to notify. ( 57 ) It should be emphasised in that regard that the present case involves a Member State’s partial, as opposed to total, failure to notify transposition measures. Additionally, Directive 2018/843 extended the deadline for the establishment of central registers for beneficial ownership information under Articles 30 and 31 of Directive 2015/849, although it did not change the transposition deadline for the other obligations under that directive (see point 7 of this Opinion). I see no reason why that extension should not be taken into account as a mitigating factor, as indicated by the Commission. Ireland has also demonstrated that it cooperated in good faith with the Commission during the proceedings, for example, by keeping the Commission informed (see point 32 of this Opinion). ( 58 )

69.

In the second place, regarding the duration of the infringement, the Commission considers that it should be calculated from the date of expiry of the transposition deadline for Directive 2015/849, whereas Ireland takes a different view.

70.

It should be pointed out that, in the case-law on lump sum payments under Article 260(2) TFEU, the Court assesses the duration of the infringement from the date of delivery of the Court’s first judgment under Article 258 TFEU to the date on which the Member State concerned has fulfilled its obligations, or failing that, on the date when the Court examines the facts in the second proceedings. ( 59 ) Thus, for the purposes of determining lump sum payments under Article 260(3) TFEU, the present case draws attention to two main aspects.

71.

First, regarding the end point of the duration of the infringement, it is disputed in the present case when Ireland may be considered to have fulfilled its obligations. In that regard, I am not persuaded by the arguments put forward by Ireland before the Court that the transposition measures notified on 29 November 2018 fulfilled Ireland’s obligations.

72.

In particular, it is apparent that, notwithstanding those measures, there were shortcomings in respect of certain provisions of Directive 2015/849. For example, regarding Article 30(1), second subparagraph, (2) and (7) and Article 31(1), (2), (3) and (7) of that directive, Ireland indicated in its rejoinder that the transposition deadline for those provisions was extended by Directive 2018/843, but in any event was taking up instruments to transpose the elements of those provisions identified by the Commission, which were notified on 30 January 2019 and 27 March 2019. However, as indicated by the Commission, that extension did not cover all the obligations set out in Articles 30 and 31 of Directive 2015/849 (see points 7 and 23 of this Opinion). Moreover, Ireland indicated in its rejoinder that a provision could be introduced in connection with obligations in Article 47(2) of Directive 2015/849, and that Article 48(5) to (8) of that directive did not require the specific obligations to be set out in national law. Thus, as indicated by the Commission at the hearing (see points 21 and 23 of this Opinion), Ireland had not adopted transposition measures in connection with certain obligations laid down in those provisions until its notification of such measures on 22 November 2019 and 3 December 2019. Accordingly, while the measures notified on 29 November 2018 ensured the transposition of a significant portion of Directive 2015/849, the Commission has established that Ireland fulfilled its obligations as of 3 December 2019.

73.

Second, regarding the starting point of the duration of the infringement, it seems to me that, as I proposed in points 74 and 75 of my Opinion in Commission v Romania (C‑549/18), the date of expiry of the transposition deadline set in the directive in question should be used in respect of lump sum payments, since it better serves the objective of Article 260(3) TFEU, which is in part to give stronger incentive to the Member States to transpose directives on time. ( 60 ) On the contrary, if, for example, it is only after the date of expiry of the deadline set in the reasoned opinion that the possible imposition of a lump sum under Article 260(3) TFEU arises, this would run the risk that the transposition deadline set in the directive would have no immediate effect so long as the Commission does not take action against a Member State. It should also be emphasised that, in contrast to penalty payments which provide a means of coercing a Member State to end the infringement sometime in the future, lump sum payments address past conduct, and provide a means of ensuring that a Member State will not find it preferable to await the commencement of proceedings before taking measures to remedy the infringement, ( 61 ) which may indeed occur if the date set in the reasoned opinion would be used.

74.

Consequently, the approach which I propose would appear to apply with greater force in respect of lump sum payments as compared to penalty payments, regarding which the Court has taken into account the date of expiry of the transposition deadline set in the directive concerned for assessing the duration of the infringement in Commission v Belgium (Article 260(3) TFEU — High-speed networks). ( 62 ) It should be added that, contrary to Ireland’s submissions, there is no question that the imposition of financial penalties, including lump sums, was possible at the time of the expiry of the transposition deadline of 26 June 2017 set in Directive 2015/849, given that Article 260(3) TFEU, along with the Communications from the Commission, were clearly applicable. ( 63 ) In any event, should the Court disagree with my proposal, the length of time from the date of expiry of the transposition deadline set in the directive in question may be considered as part of assessing the seriousness of the infringement, as has been done in the case-law on Article 260(2) TFEU. ( 64 )

75.

In the present case, taking account of the period following the date of expiry of the transposition deadline set in Directive 2015/849 (26 June 2017) until the date on which Ireland fulfilled its obligations (3 December 2019), the duration of the infringement is about two and a half years (30 months) which may be considered a significant period of time. ( 65 ) I should point out that the obligation for a Member State to adopt the necessary measures to transpose a directive has not in itself been considered to involve any particular difficulty. ( 66 ) Thus, the fact that, as Ireland asserts, it prioritised progress of the transposition measures through the legislative process and endeavoured to abide by an indicative timetable provided to the Commission prior to the proceedings (see point 32 of this Opinion) does not, in my view, excuse nor diminish the duration of the infringement. Nevertheless, account must be taken of the fact that, while belated, the measures notified on 29 November 2018 (that is, 17 months following the expiry of the transposition deadline of 26 June 2017 set in Directive 2015/849) ensured a far-reaching transposition of Directive 2015/849, with only four of its provisions lacking, as indicated by the Commission, and that notification of all the provisions of that directive was achieved at the latest on 3 December 2019 (see points 17, 21, 71 and 72 of this Opinion). ( 67 )

76.

Finally, Ireland has not submitted to the Court any evidence relating to its ability to pay.

77.

In view of all the circumstances of this case, I therefore propose that the Court impose on Ireland a lump sum payment of EUR 1500000.

78.

Under Article 138(1) of the Rules of Procedure of the Court of Justice, 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 Ireland has been unsuccessful, Ireland should be ordered to pay the costs. In accordance with Article 140(1) of those Rules of Procedure, under which Member States which have intervened in the proceedings are to bear their own costs, Estonia and France should be ordered to bear their own costs.

79.

In light of the foregoing, I propose that the Court should: