In respect of matters which are the responsibility of my Department, the European Commission referred Ireland to the Court of Justice of the European Union (CJEU) in relation to three infringement cases in the time period specified.
These are in respect of:
• Council Framework Decision 2009/829/JHA on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention
• Council Framework Decision 2008/909/JHA of on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
• Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.
As requested by the Deputy, further details are outlined below.
On 26 February 2021, the European Commission notified infringement procedures against Ireland for failure to notify of the transposition of Framework Decision 2009/829/JHA. Prior to notification, Ireland had transposed the directive by means of the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020, commenced on 5 February 2021. The Commission was notified of the transposition via THEMIS and on 1 April 2021 a letter was issued to the Commission formally requesting the closure of this infringement.
This infringement was referred to the CJEU on 3 December 2022, C-126. The Commission confirmed that the proceedings should continue to judgment on the basis that the transposition was not complete before the expiry of the reasoned opinion period in 2019.
The Court judgment was received on 24 March 2022. The Court made the declaration sought by the Commission that Ireland had been in default of its obligations at the time of the expiry of the reasoned opinion. The Court noted that "the Commission confirmed, in its reply, that it did not intend to make any complaints against Ireland other than the failure to transpose and notify within the period laid down in the reasoned opinion". This was the first referral to the Court and therefore there was no financial penalty.
In relation to Framework Decision 2008/909/JHA, The European Commission commenced infringement proceedings on 25 January 2019, subsequently issued a Reasoned Opinion on 25 July 2019, and referred the matter to the CJEU in December 2020, C-125. The CJEU made a declaration in respect of non-transposition on 24 March 2022.
The Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 is the relevant transposing legislation. It was signed into law on 1 March 2023 and a commencement order was signed on 2 May 2023, appointing 3 May 2023 as the date it came into effect. This completes transposition and the Commission has been notified accordingly.
On July 16, 2020, the ECJ imposed a fine of €2m for failing to transpose Directive (EU) 2015/849. As the Deputy will appreciate, this is a complex area of law and unlike many other member states Ireland requires primary legislation to transpose provisions of EU legislation with criminal penalties. Directive 2015/849 represented a complete restatement of the EU law on money laundering. It is important to note that all aspects of the Directive are now in place and operational in Ireland.
The Directive was given effect in Ireland, following very careful analysis and consideration, by a series of amendments to the existing Criminal Justice (Money Laundering & Terrorist Financing) Act 2010 and by highly-technical Regulations from the Department of Finance.
The Court’s decision related to a delay in implementing the Fourth Money Laundering Directive, dating to a period between July 2017, and the enactment of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act in November 2018. The Department of Justice and the Department of Finance subsequently provided for a number of additional measures by Regulation following detailed discussions with the Commission. The Court’s decision recognises that even though Ireland had not completed the transposition of the Directive by June 2017 as required, Ireland had done so before this case was brought before the Court.
