By: Luka Perš
“With today’s judgement (case C-628/18), the Court of Justice of the European Union ordered Slovenia to pay a lump sum of 750,000 euros, due to the late transposition of Directive 2014/65/EU. If I am not mistaken, this is the highest financial penalty that the Court of Justice has ever imposed on Slovenia. The lump sum covers the period from the expiry of the deadline for the transposition of MiFID II – the 3rd of July 2017 – until the 6th of December 2018. The delay lasted for approximately 17 months. The Commission proposed a lump sum of 1,028,560 euros, but the Court of Justice of the European Union reduced it to 750,000 euros, due to the circumstances of the case,” Saša Sever, a lawyer at the European Court of Justice wrote on Twitter. The Cerar and Šarec governments bear most of the responsibility for this.
Slovenia has received a new slap in the face from Brussels. The capable, professional and independent legal experts from the governments of Miro Cerar and Marjan Šarec failed to transpose the Markets in Financial Instruments Directive (MiFID II Directive), due to the delays. According to the Commission, this means that because the Republic of Slovenia failed to adopt all the necessary laws and regulations, needed for compliance with the MiFID II Directive by the 3rd of July 2017, or in any case because it failed to notify the Commission of these laws, regulations and administrative provisions, it has failed to fulfil its obligations under Article 93 of the aforementioned directive.
In the case in question, the Commission believes that the full transposition of the MiFID II Directive only took place after the adoption of the Market in Financial Instruments Act (Official Gazette of the Republic of Slovenia, No. 77/18), of which the Commission was only notified on the 6th of December 2018. The national measures that were forwarded on the 3rd of December 2018, namely three legal acts, two resolutions and provisions amending the Ljubljana Stock Exchange Rules (Official Gazette of the Republic of Slovenia, No. 76/17), are only supposed to mean a partial transfer of the Directive 2014/65 – at best, which is also written in the judgement. In relation to this, the Commission stated that the Republic of Slovenia itself acknowledged that with this, the MiFID Directive was only partially transposed, as certain provisions were not transposed, and others were only partially transposed. This applies, in particular, to the provisions applicable to both Multilateral Trading Systems (MTS), as well as Organised Trading Systems (OTS).
In the governments of Miro Cerar, Marjan Šarec and Alenka Bratušek, Slovenia lost in the Teran case, the arbitration and the case of the Bank of Slovenia archives
In the past, the representatives of the left-wing governments have boasted that only independent and professional experts are part of their teams. In recent years, Slovenia has suffered many bitter defeats before the Court of Justice of the European Union. The most painful defeats were surely the ones in the Teran and the arbitration case. Last December, the Court of Justice of the EU ruled on a lawsuit, filed by the European Commission against Slovenia, for violating the inviolability of the ECB archives during a criminal investigation at the Bank of Slovenia, in connection with the rehabilitation of the banks in Slovenia. The Court found that Slovenia violated European law. This is an important precedent for the privileges and immunities of the institutions of the European Union.
Court of justice of European union (Foto: epa)
In addition, the Republic of Slovenia states that on the 19th of July 2018, the Commission decided not to file a lawsuit only against the Republic of Slovenia, but also against the Kingdom of Spain. It claims that the Commission, after the Kingdom of Spain informed it of the partial transposition of the MiFID II and of the completion of the full transposition phase before the end of November 2018, the Commission decided to suspend the proceedings against the Member State in question. The Republic of Slovenia explains that it was aware that it did not notify the Commission of the partial transposition before the Commission filed the lawsuit; however, Slovenia managed to ensure the transposition of the MiFID II Directive in November 2018, thus fulfilling the obligations under Article 93 of the Directive within the timeframe that was set by the Commission for the Kingdom of Spain.
The Republic of Slovenia states that, in accordance with point 7 of the Communication from the President of the Commission of the 9th of December 2005, entitled “Implementation of Article 228 of the EC Treaty (SEC (2005) 1658),” the sanctions proposed by the Commission for failure to fulfil obligations must be calculated in accordance with the method which respects the principle of proportionality and, at the same time, the principle of equal treatment between the Member States. Under these circumstances, this Member State believes that the institution must withdraw the lawsuit for failure to fulfil obligations, which has been brought against it.
Will Tanja Fajon ask Karl Erjavec for lost 750 milion euros? (Foto: STA)
In addition, the Court has also repeatedly ruled that, where a directive expressly imposes an obligation on the Member States to ensure that the provisions, necessary for the transposition refer to that directive, or that a reference to it is made when they are officially published, they must, in any case, adopt a positive act for the transposing of the directive, containing such a reference (see judgements from the 27th of November, Commission/Germany, C-137/96, EU:C:1997:577, paragraph 8; from the 16th of July 2020, Commission/Romania (Prevention of money laundering), C‑549/18, EU:C:2020:563, paragraph 20, and from the 16th of July 2020, Commission/Ireland (Prevention of money laundering), C-550/18, EU:C:2020:564, paragraph 31), the judgement states.
The governments of Miro Cerar and Marjan Šarec violated the principles of the rule of law in the EU!
The current government has often had to face criticism when it comes to the rule of law, from the Constitutional Arch opposition quartet, and the mainstream media outlets. The leader of the Social Democrats (SD), Tanja Fajon, has never missed an opportunity to accuse the current government of supporting Poland and Hungary. How to follow the rule of law was best demonstrated by her own party, when it excluded a member of the party that had been critical of it, who is also the mayor of Ilirska Bistrica, Emil Rojc.
Karl Erjavec, the Minister of Foreign Affairs from the Cerar government, as well as Miro Cerar himself, who served as the Minister of Foreign Affairs in the Šarec government, should both answer when it comes to the lost judgements. However, we do not think that the media cartel in the service of the former regime will actually ask them to comment on the matter.
So, the next time you hear the left-wing opposition shouting about the human rights violations or the disrespect to the rule of law, ask them about their own respect for the rule of law. There is simply no logic in the fact that the officials of the responsible ministries are not able to transpose the usual Directives of the European Union. They did not manage to do that in seventeen months! We want to thank the European Union for revealing yet another legal butchering by the former left-wing governments.