Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 11 September 2025 (1)

Case C‑311/24

Bundeswettbewerbsbehörde

M. GmbH

(Request for a preliminary ruling from the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria))

( Reference for a preliminary ruling – Agriculture – Competition – Directive (EU) 2019/633 – Unfair trading practices – Article 6(1)(e) – Infringements – Buyer requesting a payment from various suppliers unrelated to the sale of agricultural and food products – Cumulation of fines (one for each supplier who was contacted) – National legislation providing for a fine of up to an amount of EUR 500 000 per infringement )

I. Introduction

1. M. GmbH, a private limited company, operates food retail stores in Austria. Following the negative impact of the COVID-19 pandemic on its customers and of inflation affecting energy costs in particular, that company was in a difficult financial position and decided, in order to tackle it, to implement a transformation process which it intended to have financed, in part, by its suppliers. Accordingly, that company sent simultaneously to 16 of its suppliers an email explaining its plan, accompanied by a pro forma invoice stating the amount to be paid for the contribution to that transformation plan. The Bundeswettbewerbsbehörde (Federal Competition Authority, Austria; ‘the BWB’) filed 16 applications with the competent Austrian court against that company for the imposition of a fine under the applicable national legislation.

2. In that context, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), which has been seised of four of those applications, questions, in essence, on the one hand, the compatibility with EU law of the national legislation which allows a set of prohibited unfair trading practices to be classified as a ‘single infringement’ when they constitute a series of infringements, and a single fine for that set of practices to be imposed and, on the other hand, the compatibility with EU law of a cap on the fine imposed for an infringement consisting of one or more unfair trading practices.

3. The present case provides the Court with the opportunity to rule, for the first time, on the interpretation of Directive (EU) 2019/633 (2) and, in particular, Article 6(1)(e) thereof, which confers on national enforcement authorities the power to impose, or initiate proceedings for the imposition of, fines and other equally effective penalties and interim measures on the author of the infringement, in accordance with national rules and procedures. (3) More specifically, the Court will be called upon to provide important clarification of the rules for penalising instances of conduct prohibited by that directive.

II. Legal framework

A. European Union law

4. According to recitals 1, 8, 9, 14, 34 and 39 of Directive 2019/633:

‘(1) Within the agricultural and food supply chain, significant imbalances in bargaining power between suppliers and buyers of agricultural and food products are a common occurrence. Those imbalances in bargaining power are likely to lead to unfair trading practices when larger and more powerful trading partners seek to impose certain practices or contractual arrangements which are to their advantage in relation to a sales transaction. … A minimum Union standard of protection against unfair trading practices should be introduced to reduce the occurrence of such practices which are likely to have a negative impact on the living standards of the agricultural community. The minimum harmonisation approach in this Directive allows Member States to adopt or maintain national rules which go beyond the unfair trading practices listed in this Directive.

…

(8) A majority of Member States, but not all of them, have specific national rules that protect suppliers against unfair trading practices occurring in business-to-business relationships in the agricultural and food supply chain. … Certain Member States which have specific rules on unfair trading practices therefore entrust the enforcement of such rules to administrative authorities. However, Member States’ unfair trading practices rules – to the extent they exist – are characterised by significant divergence.

(9) The number and size of operators vary across the different stages of the agricultural and food supply chain. Differences in bargaining power, which correspond to the economic dependence of the supplier on the buyer, are likely to lead to larger operators imposing unfair trading practices on smaller operators. A dynamic approach, which is based on the relative size of the supplier and the buyer in terms of annual turnover, should provide better protection against unfair trading practices for those operators who need it most. …

…

(14) This Directive should apply to the business conduct of larger operators towards operators who have less bargaining power. A suitable approximation for relative bargaining power is the annual turnover of the different operators. … An upper limit should prevent protection from being afforded to operators who are not vulnerable or are significantly less vulnerable than their smaller partners or competitors. Therefore, this Directive establishes turnover-based categories of operators according to which protection is afforded.

…

(34) The existence of a deterrent, such as the power to impose, or initiate proceedings, e.g. court proceedings, for the imposition of, fines and other equally effective penalties, and to publish investigation results, including the publication of information relating to buyers that have committed infringements, can encourage behavioural changes and pre-litigation solutions between the parties, and should therefore be part of the powers of the enforcement authorities. Fines may be particularly effective and dissuasive. However, the enforcement authority should be able to decide in each investigation which of its powers it will exercise and whether it will impose, or initiate proceedings for the imposition of, a fine or another equally effective penalty.

…

(39) As a majority of Member States already have national rules on unfair trading practices, albeit diverging rules, it is appropriate to use a Directive to introduce a minimum standard of protection under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to enable cohesive regimes to be established. Member States should not be precluded from maintaining or introducing in their territory stricter national rules that provide for a higher level of protection against unfair trading practices in business-to-business relationships in the agricultural and food supply chain, subject to the limits of Union law applicable to the functioning of the internal market, provided that such rules are proportionate.’

5. Article 1 of that directive, entitled ‘Subject matter and scope’, states, in paragraphs 1 and 2 thereof:

‘1. With a view to combating practices that grossly deviate from good commercial conduct, that are contrary to good faith and fair dealing and that are unilaterally imposed by one trading partner on another, this Directive establishes a minimum list of prohibited unfair trading practices in relations between buyers and suppliers in the agricultural and food supply chain and lays down minimum rules concerning the enforcement of those prohibitions and arrangements for coordination between enforcement authorities.

2. This Directive applies to certain unfair trading practices which occur in relation to sales of agricultural and food products by:

(a) suppliers which have an annual turnover not exceeding EUR 2 000 000 to buyers which have an annual turnover of more than EUR 2 000 000;

(b) suppliers which have an annual turnover of more than EUR 2 000 000 and not exceeding EUR 10 000 000 to buyers which have an annual turnover of more than EUR 10 000 000;

(c) suppliers which have an annual turnover of more than EUR 10 000 000 and not exceeding EUR 50 000 000 to buyers which have an annual turnover of more than EUR 50 000 000;

(d) suppliers which have an annual turnover of more than EUR 50 000 000 and not exceeding EUR 150 000 000 to buyers which have an annual turnover of more than EUR 150 000 000;

(e) suppliers which have an annual turnover of more than EUR 150 000 000 and not exceeding EUR 350 000 000 to buyers which have an annual turnover of more than EUR 350 000 000.

…’

6. Article 3 of that directive, entitled ‘Prohibition of unfair trading practices’, provides, in paragraph 1(d) thereof:

‘Member States shall ensure that at least all the following unfair trading practices are prohibited:

…

(d) the buyer requires payments from the supplier that are not related to the sale of the agricultural and food products of the supplier.’

7. Article 6 of the directive, entitled ‘Powers of enforcement authorities’, provides, in paragraph 1 thereof:

‘Member States shall ensure that each of their enforcement authorities has the necessary resources and expertise to perform its duties, and shall confer on it the following powers:

…

(d) the power to take decisions finding an infringement of the prohibitions laid down in Article 3 and requiring the buyer to bring the prohibited trading practice to an end …;

(e) the power to impose, or initiate proceedings for the imposition of, fines and other equally effective penalties and interim measures on the author of the infringement, in accordance with national rules and procedures;

…

The penalties referred to in point (e) of the first subparagraph shall be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.’

B. Austrian law

8. The Bundesgesetz zur Verbesserung der Nahversorgung und der Wettbewerbsbedingungen (Faire-Wettbewerbsbedingungen-Gesetz) (Federal Law on the improvement of local supply and conditions of competition (Law on fair conditions of competition), (4) as last amended by the Bundesgesetz, mit dem das Bundesgesetz zur Verbesserung der Nahversorgung und der Wettbewerbsbedingungen geändert wird (Federal Law amending the Federal Law on the improvement of local supply and conditions of competition), of 31 December 2021 (‘the FWBG’), (5) transposes Directive 2019/633 into Austrian law.

9. The provisions of Paragraph 5c(1) of the FWBG and point 4 of Annex I thereto identically transpose point (d) of the first subparagraph of Article 3(1) of that directive.

10. Paragraph 6(2) of the FWBG, which transposes Article 6 of that directive, reads as follows:

‘At the request of the authority responsible for the investigation for the purposes of section 2, the antitrust court may impose on a buyer within the meaning of Paragraph 5b(2), which infringes the provisions of Paragraph 5c, a fine up to a maximum amount of EUR 500 000. The calculation of the amount of the fine shall, in particular, take into account the gravity and duration of the infringement, the enrichment gained from that infringement, the degree of liability and economic capacity. Paragraph 33 of the KartG 2005 shall apply mutatis mutandis.’

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

11. M. GmbH is a private limited company which operates food retail stores in Austria.

12. Impacted economically by the negative effects of the COVID-19 pandemic on tourism, resulting in a loss of customers in the food retail sector and cost increases, that company began a complete restructuring process. To that end, the company engaged an external consultant, who advised it to request a financial contribution from its suppliers in order to partly offset the high costs involved in that process.

13. On 16 May 2023, the company presented that plan by organising an online ‘Supplier Day’ conference, during which it provided its suppliers with an overview of the current market situation and related problems as well as its current losses. It explained its transformation process, which aimed to professionalise ‘Category Management’ and optimise internal processes. It also explained to its suppliers its need for investment, in particular in environmentally friendly hydrogen production units and a CO2-neutral heavy goods fleet. In that regard, the company informed them that it needed a financial contribution from them in order to implement such a plan and that, if they were willing to support it, it would take that into account.

14. On 17 May 2023, M. GmbH simultaneously sent to each of its suppliers one of two variants of the same email, depending on whether they had attended the abovementioned Supplier Day. In that email, it requested them to pay a contribution of a specific amount in order to participate in the financing of the transformation process that it was planning to undertake. Those emails were accompanied by pro forma invoices for different lump sums. With the exception of the amount in the pro forma invoice and the distinction as to whether or not the respective supplier had attended the Supplier Day, those emails were identical for all suppliers. However, on its own initiative, that company decided to terminate the investment request scheme, cancel the pro forma invoices attached to those emails and reimburse the amounts already paid by some suppliers. In total, only 2 of the 16 suppliers decided to act on the investment request for investment and pay the amounts stated on the pro forma invoices attached to the emails sent.

15. The BWB found that M. GmbH, as a buyer, had requested a payment from 16 suppliers that was not related to the sale of agricultural and food products. That authority considered that each of those requests for payment constituted a separate infringement of the combined provisions of Paragraph 5c(1) of the FWBG and point 4 of Annex I thereto, which transpose into Austrian law Article 3(1)(d) of Directive 2019/633. On 10 November 2023, it therefore filed 16 separate applications against M. GmbH with the competent Austrian court for the imposition of an appropriate fine pursuant to Paragraph 6(2) of the FWBG. (6)

16. In that context, the referring court states that Paragraph 6(2) of the FWBG is a penalty of a criminal nature. According to Austrian legal theory, the conduct alleged against M. GmbH must be classified as a ‘single infringement’ on the ground that it represents a legal unity of action constituting an infringement (‘tatbestandliche Handlungseinheit’). Therefore, that court states that even if the facts alleged affect relationships with 16 separate suppliers, a single fine should be imposed of a maximum amount of EUR 500 000, as laid down in Paragraph 6(2) of that law.

17. However, the referring court harbours doubts as to whether that outcome makes it possible to achieve the objective pursued by Directive 2019/633, namely to strike some degree of rebalancing between the negotiating power of buyers and those of sellers in the agricultural and food supply chain, a rebalancing which, in its view, can be achieved only at the level of the individual relationship between them. If the classification as a ‘single infringement’ was found to be incompatible with that directive, the referring court asks whether that directive precludes the imposition of separate fines for each of the infringements established in accordance with the principle of cumulation of penalties.

18. In those circumstances, the Oberlandesgericht Wien (Higher Regional Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)(a) Must Article 6(1)(e) of [Directive 2019/633] be interpreted, in a situation in which a buyer, on the basis of a decision with a single intent and on the same day, separately requests – in breach of Article 3(1)(d) of that directive – a payment from various suppliers who are protected under Article 1 of that directive, as precluding national legislation according to which those requests for payment are to be regarded as a single infringement (several infringements committed by means of a single act) in respect of which only a single penalty is to be imposed?

(b) Is it relevant to the answer to Question 1(a) – in the light of the requirement in the last sentence of Article 6(1) of [Directive 2019/633], according to which the penalty is to be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement – that a fine of up to a maximum amount of (only) EUR 500 000 may be imposed for that infringement under the Austrian national rule imposing a penalty (Paragraph 6(2) of the [FWBG])?

(2) If Question 1(a) is answered in the affirmative:

Must Article 6(1)(e) of [Directive 2019/633] be interpreted as meaning that each request for payment sent to a supplier – in so far as it infringes the prohibition in Article 3(1)(d) of [that directive] – must be regarded as a trading practice which must be penalised independently and for which a separate penalty (fine) must be imposed in accordance with the principle of cumulation, so that several fines must be imposed, taking into account that the Austrian national rule imposing a penalty (Paragraph 6(2) of the [FWBG]) provides for the imposition of a fine of up to a maximum amount of EUR 500 000?’

19. Written observations were submitted to the Court by the BWB, M. GmbH, the Austrian Government and the European Commission.

IV. Analysis

20. By its two questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court seeks, in essence, to ascertain whether the requirement that penalties must be effective, proportionate and dissuasive laid down in point (e) of the first subparagraph and the second subparagraph of Article 6(1) of Directive 2019/633 precludes national legislation or case-law according to which an unfair commercial practice simultaneously applied by a buyer to a number of suppliers must be regarded as a single infringement, and therefore, in such a case, a single fine of up to a maximum amount of EUR 500 000 may be imposed (Question 1(a) and (b)). If that question is answered in the affirmative, the referring court seeks to ascertain whether point (e) of the first subparagraph of Article 6(1) of that directive must be interpreted as meaning that a separate fine may be imposed up to the limit of the maximum amount of EUR 500 000 for each infringement found (Question 2).

21. I would like to point out, before commencing the analysis of those questions, that, by those questions, the referring court in fact raises two separate issues concerning the compatibility with EU law of national legislation imposing, first (and under certain conditions), a common classification of a ‘single infringement’ for several unfair trading practices and, second, a cap on the fine laid down in order to penalise an infringement consisting of one or more unfair trading practices.

22. Before examining the substance of those two issues, I consider it appropriate to provide certain clarifications about the scope of Directive 2019/633 and the provisions which were identified by the referring court in its questions referred to the Court for a preliminary ruling.

A. Preliminary observations

23. I would point out, first of all, that Directive 2019/633 was set in a context of minimum harmonisation and aims to introduce at EU level a minimum standard of protection against unfair trading practices which are likely to have a negative impact on the living standards of the agricultural community. (7)

24. Therefore, that directive merely lays down minimum rules for enforcing the prohibition of unfair trading practices (8) and otherwise leaves the Member States considerable room for manoeuvre in implementing it, in particular in the design of national transposition regimes (9) and with regard to the rules relating to penalties, (10) in order to fulfil the objective pursued by that directive which is to reduce the occurrence of unfair trading practices used against suppliers of agricultural and food products. (11) That room for manoeuvre is, however, limited by the fact that Member States must ensure that the national measures introduced guarantee the full effectiveness of the directive as transposed into their national legal order.

25. More specifically, regarding the provisions mentioned by the referring court in its two questions for a preliminary ruling, it should be noted that point (e) of the first subparagraph of Article 6(1) of Directive 2019/633 states that national enforcement authorities must have the power to penalise the author of an infringement referred to in Article 3(1) of that directive, to impose, or initiate proceedings for that purpose, fines and other equally effective penalties and interim measures on the author of the infringement, in accordance with national rules and procedures. As regards, in particular, the penalties referred to in point (e) of the first subparagraph of Article 6(1) of that directive, the second subparagraph of that article provides that the penalties must be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.

26. Having made those initial observations, I shall now examine in detail the two issues raised by the referring court.

B. The classification of several unfair trading practices as a ‘single infringement’ or ‘separate infringements’

27. By the first part of its first question for a preliminary ruling (Question 1(a)), the referring court asks, in essence, whether national legislation providing for the imposition of a single fine in the case of parallel unfair trading practices implemented against one or more suppliers in breach of the prohibition laid down in Article 3(1)(d) of Directive 2019/633 is compatible with that directive.

28. To begin with, I would point out that, in the present case, it is common ground that the practice at issue in the main proceedings falls within the scope of Directive 2019/633, since it corresponds to one of the prohibited unfair trading practices listed in Article 3(1) of that directive, and, in particular, to point (d) of that provision, according to which the buyer is prohibited from requiring payments from the supplier that ‘are not related to the sale of the agricultural and food products of the supplier’.

29. With regard to point (e) of the first subparagraph of Article 6(1) of Directive 2019/633, I would point out that that provision provides no indication of the manner in which an unfair commercial practice resulting from parallel conduct falling under one of the prohibitions laid down in Article 3(1) thereof should be classified and sanctioned under national law. Whereas point (e) of the first subparagraph of Article 6(1) of that directive provides that Member States must ensure that their national enforcement authorities have the power to impose, or initiate proceedings for the imposition of, fines and other equally effective penalties, the second subparagraph of Article 6(1) thereof merely states that those penalties must be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement. However, it must be stated that the latter provision, which mainly concerns the rules for determining the penalty for an infringement which has been found to have taken place, provides no specific indication of the phase preceding the finding of that infringement.

30. It follows that the provisions identified by the referring court in its first question do not, in principle, preclude the classification as a ‘single infringement’ to be given to simultaneous infringements and which fall within the national law transposing point (d) of the first subparagraph of Article 3(1) of Directive 2019/633, provided that the requirement laid down in the second subparagraph of Article 6(1) of that directive which requires that the penalty imposed be effective, proportionate and dissuasive is fulfilled. (12)

31. It must also be stated that, contrary to what the parties in the main proceedings maintain, neither that directive nor any other provision or principle of EU law can be interpreted as meaning that they require (or exclude), a priori, a single classification of the infringement at issue in the main proceedings (or any cumulation of penalties and, therefore, a classification as separate infringements).

32. It is therefore necessary, in the first place, to reject the arguments relied on by M. GmbH claiming that EU law precludes a cumulation of penalties and imposes a single penalty because of the application of the concept of a ‘single and continuous infringement’ and of the principle ne bis in idem.

33. First, I would point out that the concept of a ‘single and continuous infringement’ is primarily an instrument of a procedural nature concerning the taking of evidence for the purpose of facilitating the imputation of certain types of conduct to undertakings suspected of having infringed the rules relating to competition law. As is clear from the settled case-law of the Court, an infringement of Articles 101 and 102 TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of those provisions. (13) Thus, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission (and the national competition authorities) is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. (14)

34. I should also point out that the legal bases of Directive 2019/633 are Article 43(2) and Article 39(1) TFEU on the common agricultural policy and not the provisions of the FEU Treaty on competition law.

35. Second, as regards the principle ne bis in idem relied on by M. GmbH in order to contest the right to impose several cumulative penalties, that argument can also, in my view, be quite easily rejected since, in the present case, the conditions for applying that principle are not fulfilled.

36. In that regard, I would point out that it follows from the settled case-law of the Court on Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) that the principle ne bis in idem prohibits a duplication both of proceedings and of penalties in respect of the same acts and against the same person. (15) Although the ‘idem’ condition requires the material facts to be identical, that principle is not intended to be applied where the facts in question are not identical but merely similar. (16) The relevant criterion for the purposes of assessing the existence of the same infringement is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned. (17) However, it would seem to me that, in the present case, the ‘idem’ condition is not fulfilled, since it follows from the order for reference that the facts which gave rise to the proceedings brought by the BWB are not the same. (18) The fact that the practices at issue may be classified as a ‘single infringement’ under national law does not in any way alter the fact that, in the present case, the material facts do not appear to be identical and do not, in any event, suffice to indicate that there is a set of concrete circumstances which are inextricably linked together,and thus fall with the notion of ‘same acts’. (19)

37. In the second place, the argument put forward by the BWB that, because Directive 2019/633 focuses on the protection of individual relationships between buyers and suppliers, each act covered by the prohibition laid down in Article 3(1) thereof must be assessed separately and individually, which would automatically exclude any single classification, must also be rejected. Although it is true that certain provisions of that directive, (20) including Article 1 thereof, which defines its scope, (21) refer to relations between buyers and sellers, nevertheless it cannot be inferred from those provisions that Member States are under any obligation to classify each prohibited act individually as a separate infringement. Irrespective of the fact that the joint classification of several prohibited acts would not, in principle, mitigate their prohibition, (22) I would point out that the objective pursued by the directive goes beyond the mere protection of individual relations between buyers and suppliers and covers, more generally, protection of the agricultural community as a whole, as confirmed, moreover, by the legal bases of Directive 2019/633. (23)

38. In the light of the foregoing analysis, in so far as the issue regarding the legal classification in national law of unfair trading practices prohibited by Directive 2019/633 is not governed by EU law, Member States remain free, in the case of a commercial practice of a buyer prohibited under the first subparagraph of Article 3(1) thereof, implemented with the same deliberate intention in a parallel manner against several suppliers, either to confer on national enforcement authorities the power to find that a single infringement has been committed and, accordingly, to impose a single penalty, or to confer on them the power to find that several infringements have been committed and, accordingly, to impose several penalties, provided that in both cases the penalties laid down are ‘effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement’ as required by the second subparagraph of Article 6(1) of that directive.

C. Capping of the fine penalising one or more unfair trading practices taken as a whole

39. By the second part of its first question for a preliminary ruling (Question 1(b)), the referring court asks, in essence, whether, in the case of a common classification as a ‘single infringement’ of several prohibited acts falling under Article 3 of Directive 2019/633, the second subparagraph of Article 6(1) thereof precludes national legislation setting a maximum ceiling of EUR 500 000 as a penalty for such an infringement. In the event that classification as a ‘single infringement’ is incompatible with that directive, the referring court asks whether that directive precludes the imposition of several fines with a cap of EUR 500 000 for each infringement found to have been committed (Question 2).

40. I must state from the outset that that issue does not directly concern whether the amount of the fine laid down in Austrian law is sufficient to ensure the effective application of Directive 2019/633 but rather the impact that the cap on the amount of that fine may have on the obligation of the Member States to put in place rules on sanctions which are compatible with the requirements of that directive. It is not the classification as a single infringement or the maximum amount of the penalty in itself, (24) each taken separately, which are at the heart of the second part of that first question, but rather the combined effect of those two aspects of national law which fuel the doubts for the referring court as to its compatibility with EU law. Therefore, the referring court is asking the Court to clarify whether, in circumstances such as those in the present case, such a cap complies with the requirements of the second subparagraph of Article 6(1) of that directive and, in particular, whether that cap satisfies the conditions of being effective and dissuasive.

41. In that context, I note that, as with the issue associated with the classification of the infringement which was examined in points 29 to 38 of this Opinion, it follows from the provisions of Directive 2019/633 and from the general logic of minimum harmonisation which it implements that Member States are free, in principle, to set a maximum limit on fines penalising prohibited acts. (25) Although Article 6(1) of that directive provides that Member States must establish penalties for unfair trading practices, in particular in the form of fines, that provision contains no specification as to the amount of those fines, or of any cap on them.

42. I note, moreover, that that provision allows Member States considerable latitude, leaving it to national law to determine the specific arrangements for imposing fines in the case of unfair trading practices, as evidenced by the express reference to national rules and procedures in point (e) of the first subparagraph of Article 6(1) of Directive 2019/633. However, I should also point out that the room for manoeuvre of the Member States is restricted by their obligation to ensure that the penalties laid down in national law in implementing that directive are effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.

43. As follows from the settled case-law of the Court, in the absence of harmonisation of EU legislation in the field of penalties applicable where conditions laid down by a procedure imposed by national legislation are not complied with, Member States are free to choose the penalties they consider appropriate, provided that they exercise their competence in compliance with EU law. (26) Therefore, although the penalties that the Member States impose to counter infringements of rules relating to unfair trading practices fall within their procedural and institutional autonomy, that autonomy is nevertheless limited by the principle of equivalence, the application of which is not at issue in the present case, the principle of effectiveness, which requires that such penalties be effective and dissuasive, and the principle of proportionality, which does not permit the penalties provided for under the national legislation going beyond what is necessary in order to attain the objectives legitimately pursued by that legislation and, furthermore, must not be disproportionate to those objectives. (27)

44. In that regard, I would like to add that it is for the national courts, which have sole jurisdiction to interpret and apply national law, to determine whether, having regard to all the circumstances of the particular case, those penalties are effective, proportionate and dissuasive. The Court, when giving a preliminary ruling, may, however, provide clarification designed to give those courts guidance in its assessment. (28) It should be stated that the Court has already had the opportunity to interpret instruments of EU law which lay down, like Directive 2019/633, the requirement of effective, proportionate and dissuasive penalties, (29) thereby providing certain indicia which may be useful in the present case.

45. First, I note that the requirement to ensure that penalties incurred are effective, proportionate and dissuasive is assessed, in general, in the light of the intended objective. (30) In the present case, as stated in point 24 of this Opinion, the objective pursued by Directive 2019/633 is to reduce the occurrence of unfair trading practices used against suppliers of agricultural and food products where those practices are likely to have a negative impact on the living standards of the agricultural community.

46. Second, it follows from the Court’s case-law that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality. (31) The Court therefore held that, although a fine may, admittedly, constitute a dissuasive penalty, its low amount may nonetheless render that penalty inadequate (32) or, conversely, make it disproportionate where the amount of the penalty imposed is too high. (33) The Court has also held that penalties which take account of the extent of the harm caused to the consumer (34) and which deprive offenders of the economic benefits derived from the infringements committed (35) so as to deter offenders from committing such infringements (36) may be regarded as being effective and dissuasive.

47. As regards whether the penalties are commensurate with the seriousness of the infringements established, it must also be stated that where national legislation provides for the duplication of penalties, such as the combination of several financial penalties, the competent authorities are under an obligation to ensure that the severity of all of the penalties imposed does not exceed the seriousness of the infringement identified, failing which the principle of proportionality would not be observed. (37)

48. Third, the principle of proportionality, which is guaranteed by Article 49(3) of the Charter, has to be observed by the Member States, not only as regards the determination of factors constituting an infringement and the determination of the rules concerning the severity of fines, but also as regards the assessment of the factors which may be taken into account in the fixing of the fine. (38) Also, that principle requires that the individual circumstances of the particular case are taken into account in determining the penalty and fixing the amount of the fine. (39)

49. Fourth, it follows from the Court’s case-law that, in order to guarantee that penalties are effective, proportionate and dissuasive, it is not only the national legislature, but also the national courts which must enjoy, within the limits established by the subject matter of the case before them, a discretion enabling them, depending on the circumstances of the case, to choose the measure proportionate to the seriousness of the failure to comply with the obligation found. (40) Therefore, the examination by the national courts of the effectiveness, proportionality and dissuasiveness of the penalties must be carried out taking into account, in accordance with the third paragraph of Article 288 TFEU, not only the provision adopted specifically in national law to transpose a directive, but also all the provisions of that law, interpreting them, so far as possible, in the light of the wording and objectives of that directive. (41)

50. Having made those clarifications of the case-law, I should state that none of the abovementioned cases directly concerns the situation under consideration in the present case in so far as those cases mainly concerned the rules for determining the penalty imposed and not the phase preceding the finding of the infringement committed and its classification in national law. (42)

51. That said, I consider that the effective application of Directive 2019/633 cannot be limited solely to the assessment of the type of penalty laid down by national law or to certain aspects of or rules for the determination of that penalty, such as the amount of the fine imposed, but must also take account of any other factor capable of undermining the requirement to provide for effective, proportionate and dissuasive penalties within the meaning of the second subparagraph of Article 6(1) of that directive and, therefore, of affecting the objectives pursued by that directive. That is particularly the case where, as in the present case, the classification of the infringement in national law may have an impact on the (maximum) amount of the penalty incurred which, according to the Court’s case-law stated in point 46 of this Opinion, is one of the factors to be taken into account in establishing the appropriateness of the penalties.

52. In the present case, although the cumulation of a number of financial penalties presents the risk that the sum of the penalties or the total amount of the fines imposed exceeds the gravity of the infringement established, thereby breaching the principle of proportionality, (43) the classification as a single infringement of several instances of conduct covered by the prohibitions laid down in Article 3 of Directive 2019/633 as a single infringement might, conversely, lead, in certain cases, to the imposition of a penalty which, because of the cap on the amount of the fine (and of the impossibility for the national enforcement authorities of exceeding that amount), cannot be regarded as being sufficiently effective and dissuasive. (44)

53. Consequently, although Directive 2019/633 does not rule out the possibility for a Member State of classifying an act repeatedly infringing the prohibitions laid down in Article 3(1) thereof as a single infringement, and therefore imposing a single penalty for the various unfair trading practices in question, this possibility does not exempt national enforcement authorities of a Member State from their obligation to ensure that the penalty imposed is effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement. It is therefore for the referring court to carry out an overall assessment of the national measure implementing that directive and of the penalty imposed, taking account of all the relevant factors, including the individual circumstances of the present case, in order to verify that the requirements laid down in Article 6(1) of that directive relating to penalties have been met.

54. In the light of the foregoing, I am of the opinion that Article 6(1)(e) of Directive 2019/633 must be interpreted as meaning that, in the case of a commercial practice by a purchaser that is prohibited under the first subparagraph of Article 3(1) of that directive, implemented with the same deliberate intention and in parallel with regard to several suppliers, Member States remain free either to confer on the national enforcement authorities the power to find a single infringement and, therefore, to impose a single penalty, or to confer on them the power to find the existence of several infringements and, therefore, to impose multiple penalties, provided that, in accordance with the combined provisions of point (e) of the first subparagraph in conjunction with the second subparagraph of Article 6(1) of that directive, the national legislation at issue ensures that an effective, proportionate and dissuasive penalty is imposed, taking into account the nature, duration, recurrence and gravity of the infringement.

V. Conclusion

55. In the light of the foregoing considerations, I propose that the Court reply to the questions referred for a preliminary ruling by the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) as follows:

Article 6(1)(e) of Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain

must be interpreted as meaning that in the case of a commercial practice of a buyer prohibited under the first subparagraph of Article 3(1) of Directive 2019/633 implemented with the same deliberate intention in a parallel manner against several suppliers, Member States remain free either to confer on national enforcement authorities the power to find that a single infringement has been committed and, accordingly, to impose a single penalty, or to confer on them the power to find that several infringements have been committed and, accordingly, to impose several penalties, provided that, in accordance with point (e) of the first subparagraph in conjunction with the second subparagraph of Article 6(1) of that directive, the national legislation at issue ensures that a penalty is imposed which is effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.

1 Original language: French.

2 Directive of the European Parliament and of the Council of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain (OJ 2019 L 111, p. 59).

3 That directive, although cited in the cases which gave rise to the judgments of 13 November 2019, Lietuvos Respublikos Seimo narių grupė (C‑2/18, EU:C:2019:962), and of 11 March 2021, Commission v Hungary (Profit margins) (C‑400/19, EU:C:2021:194), has not yet been interpreted by the Court.

4 BGBl. 392/1977.

5 BGBl. I 239/2021.

6 In the present case, the Oberlandesgericht Wien (Higher Regional Court, Vienna), the referring court, is ruling on four of those applications, attached for the purposes of the main proceedings, in which M. GmbH requested from each of its suppliers amounts of between EUR 10 000 and EUR 18 000.

7 See recital 1 of Directive 2019/633.

8 See Article 1(1) of Directive 2019/633.

9 See recitals 8, 34 and 39 of Directive 2019/633.

10 See, in that regard, Commission Staff Working Document – Unfair Trading Practices (UTP) – Overview tables on the Member States’ transposition choices and enforcement activities, which accompanies the Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled ‘Implementing the prohibition of unfair trading practices to strengthen the position of farmers and operators in the agricultural and food supply chain – State of play’ (COM(2024) 176 final) (‘Commission Report on the transposition of Directive 2019/633’). That report, published in April 2024, is evidence of the wide range of national transposition measures within the European Union, in particular with regard to penalties.

11 See recital 1 of Directive 2019/633.

12 In that regard, I note that the Commission Report on the transposition of Directive 2019/633 is silent on how the various Member States have addressed the issue of whether multiple acts prohibited by that directive should be classified as a ‘single infringement’ or as ‘multiple infringements’.

13 See, to that effect, judgment of 1 February 2024, Scania and Others v Commission (C‑251/22 P, EU:C:2024:103, paragraph 94 and the case-law cited).

14 See, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).

15 See, to that effect, judgments of 20 March 2018, Garlsson Real Estate and Others (C‑537/16, EU:C:2018:193, paragraph 27 and the case-law cited), and of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 25 and the case-law cited).

16 See, to that effect, judgment of 30 January 2025, Engie România (C‑205/23, EU:C:2025:43, paragraph 58 and the case-law cited).

17 See, to that effect, judgment of 30 January 2025, Engie România (C‑205/23, EU:C:2025:43, paragraph 57 and the case-law cited).

18 It is not in dispute that, in total, M. GmbH sent 16 requests for payment to separate suppliers for amounts which differed depending on the supplier.

19 I note in that regard that the Court, in its case-law, considers that the legal classification of the facts, under national law, is not relevant for the purposes of establishing the existence of the same infringement, in so far as the scope of the protection conferred in Article 50 of the Charter cannot vary from one Member State to another. See, to that effect, judgments of 20 March 2018, Garlsson Real Estate and Others (C‑537/16, EU:C:2018:193, paragraph 38), and of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 36).

20 See, in that regard, recitals 1 and 14 of Directive 2019/633.

21 That provision provides that the scope of Directive 2019/633 is defined by reference to negotiating power relationships between a supplier and a buyer determined by differences in turnover.

22 The correction of the imbalance in the individual relationship between the buyer and the supplier may also be taken into account in calculating a single penalty.

23 See, to that effect, points 24 and 34 of this Opinion. See also recital 1 of Directive 2019/633.

24 The Commission’s report on the transposition of Directive 2019/633 states that 24 Member States provide for a maximum limit on fines which may be imposed of widely differing amounts, ranging from EUR 2 329.37 in the case of Malta to EUR 2 500 000 in the case of Portugal. Moreover, although that limit is expressed in some of those Member States, such as the Czech Republic, Italy, Latvia, Hungary or the Netherlands, as a percentage of turnover, in others, such as Italy or Slovakia, it corresponds to a percentage of the purchase price or of the charges improperly imposed on the supplier.

25 I would also point out that that, in order to establish whether the national classification of a given type of conduct as a ‘single infringement’ or ‘multiple infringements’ complies with Directive 2019/633, it seems of no importance whether or not the national law authorises the imposition of a fine limited to a certain amount.

26 See, by analogy, judgment of 19 December 2024, SISTEM LUX (C‑717/22 and C‑372/23, EU:C:2024:1041, paragraph 48 and the case-law cited).

27 See, to that effect, judgment of 11 January 2024, Nárokuj (C‑755/22, EU:C:2024:10, paragraph 45 and the case-law cited).

28 See, to that effect, judgment of 21 November 2018, de Diego Porras (C‑619/17, EU:C:2018:936, paragraph 91 and the case-law cited).

29 See, for example, Article 23(1) of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ 2019 L 305, p. 17); Article 23 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66); or Article 42(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1).

30 See, to that effect, judgment of 21 March 2024, Profi Credit Bulgaria (Services ancillary to a credit agreement) (C‑714/22, EU:C:2024:263). For example, the Court held that an administrative penalty consisting in a fine corresponding to 50% of the shortfall in customs duties caused by the incorrect information provided is likely to encourage EU economic operators to take all necessary measures to ensure that they have correct information relating to the goods they import and that the information which they provide in the customs declarations is correct and complete, thus contributing to achieving the objective, set out in recital 9 of Regulation No 952/2013, of ensuring the implementation of tariff measures and other common policy measures relating to trade in goods between the European Union and countries or territories outside its customs territory. See, in that regard, judgment of 25 November 2023, J.P. Mali (C‑653/22, EU:C:2023:912, paragraphs 31 and 32 and the case-law cited).

31 See, by analogy, judgments of 5 March 2020, OPR-Finance (C‑679/18, EU:C:2020:167, paragraph 26 and the case-law cited), and of 19 December 2024, SISTEM LUX (C‑717/22 and C‑372/23, EU:C:2024:1041, paragraph 49 and the case-law cited).

32 See, to that effect, judgment of 10 June 2021, Ultimo Portfolio Investment (Luxembourg) (C‑303/20, EU:C:2021:479, paragraph 32 and the case-law cited).

33 By way of illustration, the Court has accepted that a penalty consisting in the obligation to pay a sum corresponding to the value of the goods removed from customs supervision does not appear to be proportionate. A penalty of such an amount goes, according to the Court, beyond what is necessary in order to guarantee, in particular, that the goods placed under a customs warehousing procedure are not removed from customs supervision. See, in that regard, judgment of 4 March 2020, Schenker (C‑655/18, EU:C:2020:157, paragraph 44). In another case also concerning the interpretation of the system of penalties established in Regulation No 952/2013, the Court held that, even in the light of the specific nature of customs offences, in particular the frequency with which they are committed and the difficulty of detecting them, a fine provided for by national law, the amount of which is between 100% and 200% of the customs value of the goods, does not appear to be commensurate with the seriousness of all the infringements for which it is imposed, in particular where a person has failed to comply with his or her customs declaration obligations under the external transit customs procedure. According to the Court, such a penalty, first, goes beyond what is necessary to ensure that the goods under that procedure are not removed from customs supervision and, second, appears disproportionate in relation to the customs debt incurred as a result of the removal from customs supervision of goods placed under that procedure. See, in that regard, judgment of 19 December 2024, SISTEM LUX (C‑717/22 and C‑372/23, EU:C:2024:1041, paragraph 52 and the case-law cited).

34 See, by analogy, judgment of 11 January 2024, Nárokuj (C‑755/22, EU:C:2024:10, paragraph 45 and the case-law cited).

35 In a series of cases concerning the interpretation of the provisions of Article 23 of Directive 2008/48 on penalties in the light of national rules on penalties, the Court held that a creditor’s breach of a vitally important obligation in the context of that directive (for example, assessment of the consumer’s creditworthiness, failure to mention the annual percentage rate of charge in a consumer credit agreement, the number and frequency of payments, that notarial fees will be payable and sureties and insurance required) may be penalised by the creditor’s forfeiture of entitlement to interest and charges. Such a penalty would, according to the Court, have a sufficiently dissuasive effect and be commensurate with the seriousness of the infringements for which it is imposed. Conversely, the Court has held that, if the penalty of forfeiture of entitlement to interest is, in practice, weakened, or even entirely undermined, it necessarily follows that that penalty is not genuinely dissuasive. Moreover, in so far as failure to include such information in a credit agreement may compromise the ability of a consumer to assess the extent of his or her liability, the penalty laid down under national law of forfeiture by the creditor of entitlement to interest and charges must be considered to be proportionate within the meaning of Article 23 of that directive. However, the application of such a penalty, although having serious consequences for the creditor, in the event of failure to include information which, by its very nature, cannot affect the consumer’s ability to assess the extent of his or her liability, such as the name and address of the competent supervisory authority, cannot be regarded as proportionate. See, to that effect, judgments of 27 March 2014, LCL Le Crédit Lyonnais (C‑565/12, EU:C:2014:190, paragraphs 52 and 53); of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraphs 69 to 72 and the case-law cited); of 5 March 2020, OPR-Finance (C‑679/18, EU:C:2020:167, paragraph 30); of 10 June 2021, Ultimo Portfolio Investment (Luxembourg) (C‑303/20, EU:C:2021:479, paragraphs 39 and 40); and of 21 March 2024, Profi Credit Bulgaria (Services ancillary to a credit agreement) (C‑714/22, EU:C:2024:263, paragraph 55 and the case-law cited).

36 See, by analogy, judgment of 19 December 2024, SISTEM LUX (C‑717/22 and C‑372/23, EU:C:2024:1041, paragraph 63 and the case-law cited).

37 See, to that effect, judgment of 19 October 2023, G. ST. T. (Proportionality of the penalty for trade mark infringement) (C‑655/21, EU:C:2023:791, paragraphs 66 and 67 and the case-law cited).

38 See, to that effect, judgments of 23 November 2023, J.P. Mali (C‑653/22, EU:C:2023:912, paragraph 33 and the case-law cited), and of 19 June 2025, Lietuvos bankas (C‑671/23, EU:C:2025:457, paragraph 46).

39 See, to that effect, judgment of 19 October 2023, G. ST. T. (Proportionality of the penalty for trade mark infringement) (C‑655/21, EU:C:2023:791, paragraphs 66 and 67 and the case-law cited).

40 See, by analogy, judgment of 10 June 2021, Ultimo Portfolio Investment (Luxembourg) (C‑303/20, EU:C:2021:479, paragraphs 36 and 45 and the case-law cited).

41 See, by analogy, judgment of 10 June 2021, Ultimo Portfolio Investment (Luxembourg) (C‑303/20, EU:C:2021:479, paragraphs 36 and 45 and the case-law cited).

42 Which, lastly, is not, in itself, surprising since, as was stated in point 29 of this Opinion, the requirement to provide for effective, proportionate and dissuasive penalties, contained, moreover, in various other instruments of EU law, mainly concerns the rules for determining the penalty imposed.

43 See point 48 of this Opinion.

44 The possibility cannot, therefore, be ruled out from the outset that the grouping together of a number of unfair trading practices employed against a large number of suppliers and their classification as a ‘single infringement’ which can be penalised only once up to a maximum amount EUR 500 000 cannot be regarded as meeting the requirements of Article 6(1)(e) of Directive 2019/633, particularly if those practices were of a certain gravity and conducted on a large scale. In such a situation, the cap on the penalty might not allow the national enforcement authorities to take sufficient account of and assess the key parameters for establishing the amount of the fine, such as the nature, recurrence and gravity of the infringement concerned.