§1.4.2 Penalties

Article 13 of the UCPD deals with penalties for the infringement of the national rules transposing the Directive. Paragraph 1 requires Member States to lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to the Directive. It leaves to Member States to decide on the type of the available penalties and to determine the procedures for the imposition of penalties, as long as they are effective, proportionate and dissuasive. Directive (EU) 2019/2161 amended Article 13 and added additional requirements. Firstly, it provides a non-exhaustive indicative list of criteria for applying the penalties (paragraph 2). Secondly, it lays down more specific rules (paragraphs 3 and 4) on fines for widespread infringements and widespread infringements with a Union dimension that are subject to coordinated enforcement actions under Regulation (EU) 2017/2394 of the European Parliament and of the Council (108) on consumer protection cooperation (‘CPC Regulation’). Recital 15 of Directive (EU) 2019/2161 encourages Member States to ‘consider enhancing the protection of the general interest of consumers as well as other protected public interests’ in the allocation of revenues from fines. Article 13(5) requires Member States to notify the Commission of national rules on penalties and any subsequent amendments, i.e. by means of a specific notification explaining the exact national provisions concerned and not merely as part of the general notification of transposition measures. Criteria for the application of penalties Article 13(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 infringements, both domestically and in cross-border situations: Article 13 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 on the UCPD. 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 co-operation mechanism established under the CPC Regulation. Depending on the circumstances of the case, the penalties 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 referred to 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 (109). 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.

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