§11.3.1 Criteria for the imposition of penalties

Article 24(2) sets out a list of six non-exhaustive and indicative criteria that Member States’ competent authorities and courts should take into account when imposing the penalties. They apply on a ‘where appropriate’ basis to all infringements, both domestically and in cross-border situations. Article 24 2. Member States shall ensure that the following non-exhaustive and indicative criteria are taken into account for the imposition of penalties, where appropriate: (a) the nature, gravity, scale and duration of the infringement; (b) any action taken by the trader to mitigate or remedy the damage suffered by consumers; (c) any previous infringements by the trader; (d) the financial benefits gained or losses avoided by the trader due to the infringement, if the relevant data are available; (e) penalties imposed on the trader for the same infringement in other Member States in cross-border cases where information about such penalties is available through the mechanism established by Regulation (EU) 2017/2394 of the European Parliament and of the Council; (f) any other aggravating or mitigating factors applicable to the circumstances of the case. Recital 7 of Directive (EU) 2019/2161 explains some of the criteria. Recital 8 clarifies that they ‘might not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements.’ Moreover, ‘Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem.’ Intentional nature of the infringement is relevant for the application of the criteria set out in points (a) and (f). However, intention is not a necessary condition for the imposition of penalties in case of infringement. The criterion set out in point (c) covers the relevant trader’s same or different past infringements of the CRD. The criterion set out in point (e) concerns cases where the same infringement has occurred in several Member States. It only applies where information about penalties imposed by other Member States in respect of the same infringement is available through the cooperation mechanism established under the CPC Regulation. Depending on the circumstances of the case, the penalty(-ies) imposed on the same trader in other Member State(s) for the same infringement could indicate both greater scale and gravity under point (a) and/or qualify as a ‘previous infringement’ under point (c). Therefore, penalties imposed for the same infringement in other Member States could be an aggravating factor. The imposition of penalties in other Member States for the same infringement could also be considered in conjunction with other ‘aggravating’ circumstances covered by the other criteria in point (f) that generally refers to ‘any other’ aggravating or mitigating circumstances. However, a penalty imposed by another Member State on the same trader for the same infringement can also be relevant for the application of the non bis in idem principle in accordance with national law and Article 10(2) of the CPC Regulation (161).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07