Penalties in the context of CPC coordinated enforcement actions
Articles 13(3) and (4) provide additional, more prescriptive rules (compared to the general rule in paragraph 1) regarding penalties that must be available under national law for infringements that are subject to coordinated actions under the CPC Regulation. Article 21 of the CPC Regulation requires Member States’ competent authorities concerned by the coordinated action to take enforcement measures, including the imposition of penalties, in an effective, efficient and coordinated manner against the trader responsible for the widespread infringement or the widespread infringement with a Union dimension. ‘Widespread infringements’ and ‘widespread infringement with a Union dimension’ are cross-border infringements defined in Article 3(3) and (4) of the CPC Regulation (110). For this category of infringements, Article 13(3) UCPD requires Member States to provide for the possibility of imposing fines and the maximum amount of fine must be at least 4 % of the trader’s annual turnover. Accordingly, Member States can set the threshold of the maximum fine also higher than 4 % of the trader’s annual turnover. They can also choose to apply the fine based on a larger reference turnover, such as trader’s worldwide turnover. Likewise, they can extend the penalties available in the event of CPC coordinated actions to other types of infringements, such as domestic ones. When information on the trader’s annual turnover is not available, for example, in case of recently established companies, Article 13(4) requires Member States to provide for the possibility of imposing a maximum fine of at least EUR 2 million. Again, Member States can set the threshold of the maximum fine also higher than EUR 2 million. This harmonisation of national rules on fines aims to ensure that enforcement measures are possible and coherent in all Member States participating in a CPC coordinated enforcement action. The imposition of fines in accordance with Articles 13(3) and (4) of the UCPD is subject to the common criteria laid down in Article 13(2), including in particular ‘the nature, gravity and duration or temporal effects of the infringement’. The actual fine imposed by the competent authority or court in a specific case can be lower than the maximum amounts described above, depending on the nature, gravity and other relevant characterstics of the infringement. Subject to the coordination obligations under the CPC Regulation, the competent authority or court can decide to impose periodic fines (such as daily fines) until the trader stops the infringement. It could also decide to impose the fine conditionally if the trader fails to stop the infringement within the prescribed term despite the injunction to that effect. The relevant turnover to be taken into account for the calculation of the fine is the turnover achieved in the Member State imposing the fine. However, Article 13(3) also makes it possible to establish the fine based on the trader’s turnover achieved in all Member States concerned by the coordinated action if the CPC coordination results in a single Member State imposing the fine on behalf of the participating Member States. Recital 10 of Directive (EU) 2019/2161 clarifies that ‘in certain cases, a trader can also be a group of companies’. Accordingly, where the trader responsible for the infringement is a group of companies, its combined group turnover in the relevant Member States will be taken into account for the calculation of the fine. The Directive does not define the reference year for the definition of the annual turnover. Therefore, for establishing the fine, the national authorities may use, for example, the latest available annual turnover data at the time of the decision on the penalty (i.e. preceding business year). Under Article 13(3), Member States may, for national constitutional reasons, restrict the imposition of fines to: (a) infringements of Articles 6, 7, 8, 9 and of Annex I to this Directive; and (b) a trader’s continued use of a commercial practice that has been found to be unfair by the competent national authority or court, when that commercial practice is not an infringement referred to in point (a). Accordingly, this restriction is meant to address circumstances of exceptional nature and allows Member State not to apply the provisions on fines to those one-off infringements subject to CPC coordinated enforcement for which the sole legal basis is Article 5 of the UCPD on professional diligence.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.