53As regards the Republic of Slovenia’s arguments based on the difference in treatment as compared with the Kingdom of Spain in relation to the transposition of the MiFID II Directive 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, and in any event, the Commission has a discretion whether to initiate infringement proceedings against a Member State, with the result that the fact that no action was brought against the Kingdom of Spain does not call in question the possibility open to the Commission to seek, pursuant to Article 260(3), the imposition of a financial penalty on the Republic of Slovenia.
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