Opinion of the Advocate General — ECLI:EU:C:2025:698
Date: 2025-09-11
Language of the case: German

Summary C-311/24 – 1 
Case C-311/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 April 2024 
Referring court: 
Oberlandesgericht Wien (Austria) 
Date of the decision to refer: 
26 April 2024 
Applicant: 
Bundeswettbewerbsbehörde 
Defendant: 
M. GmbH 
  
Subject matter of the main proceedings 
Imposition of an appropriate fine pursuant to Paragraph 6(2) of the Faire-
Wettbewerbsbedingungen-Gesetz (Law on fair conditions of competition, ‘the 
FWBG’) in respect of requests for payment sent to suppliers 
Subject matter and legal basis of the request 
Interpretation of 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 (‘the 
UTP Directive’); compatibility of Austrian law with that directive; Article 267 
TFEU 
Questions referred for a preliminary ruling 
1(a) Must Article 6(1)(e) of Directive (EU) 2019/633 of the European Parliament 
and of the Council of 17 April 2019 concerning unfair trading practices in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-311/24 
 
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business-to-business relationships in the agricultural and food supply chain 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 
offences committed by means of a single act) in respect of which only a single 
penalty is to be imposed? 
1(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 (EU) 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 
FBWG)? 
2. If Question 1(a) is answered in the affirmative: 
Must Article 6(1)(e) of Directive (EU) 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 Directive (EU) 2019/633 – 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 FBWG) provides for the imposition 
of a fine of up to a maximum amount of EUR 500 000? 
Provisions of European Union law and international law relied on 
Article 101(3) TFEU 
Article 102 TFEU 
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation 
of the rules on competition laid down in Articles 81 and 82 of the Treaty, 
Article 25 
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 (‘the UTP Directive’). 
Article 6(1)(e) and the last sentence of Article 6(1) of the UTP Directive reads: 
‘1. 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: 
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… 
(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.’ 
 
Article 4 of Protocol No 7 to the European Convention on Human Rights 
European Union and international case-law 
Judgment of 8 July 1999, Commission v Anic Partecipazioni, C-49/92 P, 
EU:C:1999:356 
Judgment of 1 July 2010, AstraZeneca v Commission, T-321/05, EU:T:2010:266 
Judgment of 5 June 2012, Bonda, C-489/10, EU:C:2012:319 
Judgment of 24 June 2015, Fresh Del Monte Produce v Commission and 
Commission v Fresh Del Monte Produce, C-293/13 P and C-294/13 P, 
EU:C:2015:416 
Judgment of 26 January 2017, Villeroy & Boch Belgium v Commission, 
C-642/13 P, EU:C:2017:58 
Judgment of 20 March 2018, Menci, C-524/15, EU:C:2018:197 
Judgment of 12 September 2019, Maksimovic and Others, C-64/18, C-140/18, 
C-146/18 and C-418/18, EU:C:2019:723 
Judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v 
Commission, C-702/19 P, EU:C:2020:857 
Judgment of 22 March 2022, Nordzucker and Others, C-151/20, EU:C:2022:203 
Judgment of 16 June 2022, Sony Corporation and Sony Electronics v 
Commission, C-697/19 P, EU:C:2022:478 
Judgment of 16 June 2022, Toshiba Samsung Storage Technology and Toshiba 
Samsung Storage Technology Korea v Commission, C-700/19 P, EU:C:2022:484 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-311/24 
 
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Judgment of 9 November 2023, Altice Group Lux v Commission, C-746/21 P, 
EU:C:2023:836 
 
European Court of Human Rights (‘the ECtHR’), 10 February 2009, Zolotukhin v. 
Russia, Application no. 14939/03 
Provisions of national law relied on 
Faire-Wettbewerbsbedingungen-Gesetz (Law on fair conditions of competition; 
‘the FWBG’) (BGBl I 2021/239), which transposes the UTP Directive: 
Points 1 to 5 of Paragraph 5a(2) of the FWBG transpose Article 1(2)(a) to (e) of 
the UTP Directive with the same wording; Paragraph 5a(3) of the FWBG requires 
a territorial connection of the sales to the European Union in accordance with 
Article 1(2) of the UTP Directive. 
Paragraph 5a of the FWBG reads: 
‘(1) The provisions of this section govern the fight against unfair trading 
practices in connection with the sale of agricultural and food products. They are 
aimed at implementing Directive (EU) 2019/633 on unfair trading practices in 
business-to-business relationships in the agricultural and food supply chain, OJ L 
11, 30.12.2019, p. 59 (“Directive (EU) 2019/633”). The first section and the 
Kartellgesetz 2005 (2005 Law on cartels), BGBl I No 61/2005 remain unaffected. 
(2) The provisions of this section shall apply to trading practices in connection 
with the sale of agricultural and food products by: 
1. 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; 
2. 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; 
3. 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; 
4. 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; 
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5. 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; 
… 
(3) This section applies to sales where either the supplier or the buyer, or both, 
are established in the European Union. 
…’ 
Paragraph 5c(1) of the FWBG: ‘The trading practices listed in Annex I are 
prohibited. …’ 
The heading of Annex I to the FWBG is ‘Trading practices that are prohibited in 
all circumstances:’ 
Point 4 of Annex I to the FWBG reads: ‘The buyer requires payments from the 
supplier that are not related to the sale of the agricultural and food products of 
the supplier.’ 
The prohibited practice referred to in Paragraph 5c of the FWBG, read in 
conjunction with point 4 of Annex I thereto, corresponds to that in Article 3(1)(d) 
of the UTP Directive. The prohibition was transposed verbatim. 
Point 2 of Paragraph 5b of the FWBG reads as follows: 
‘“Buyer” means any natural or legal person, irrespective of that person’s place of 
establishment, or any public authority in the Union, who buys agricultural and 
food products; the term “buyer” may include a group of such natural and legal 
persons;’ 
Point 3 of Paragraph 5b of the FWBG reads as follows: 
‘“Supplier” means any agricultural producer or any natural or legal person, 
irrespective of their place of establishment, who sells agricultural and food 
products; the term “supplier” may include a group of such agricultural producers 
or a group of such natural and legal persons, such as producer organisations, 
organisations of suppliers and associations of such organisations;’ 
The definitions of ‘buyer’ and ‘supplier’ contained in points 2 and 3 of 
Paragraph 5b of the FWBG are identical to those of the UTP Directive (points 2 
and 4 of Article 2 of the UTP Directive). 
Bundesgesetz vom 23. Jänner 1974 über die mit gerichtlicher Strafe bedrohten 
Handlungen (Strafgesetzbuch) (Federal Law of 23 January 1974 on acts 
punishable by law (Criminal Code; ‘the StGB’)), BGBl I No. 60/1974, 
Paragraph 28(1) 
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Verwaltungsstrafgesetz (Law on administrative offences; ‘the VStG’), BGBl I 
No. 52/1991, Paragraph 22(2) 
Kartellgesetz (Law on cartels; ‘the KartG’) BGBl I No. 61/2005; Paragraphs 1, 2, 
4a, 5, 29, 33 
Oberster Gerichtshof (Supreme Court, Austria), 20 June 2001, 11 Os 51/11a 
Supreme Court, 27 February 2006, 16 Ok 52/05 
Supreme Court, 11 April 2007, 13 Os 1/07g 
Supreme Court, 17 September 2013, 11 Os 73/13i 
Supreme Court, 8 October 2015, 16 Ok 2/15b 
Supreme Court, 11 May 2023, 16 Ok 3/23m 
Succinct presentation of the facts and procedure in the main proceedings 
1 The defendant was severely impacted economically by the effects of the Covid 
pandemic on tourism and the resulting lack of customers in the food retail sector 
and faced massive cost increases, especially in the energy sector, as well as high 
inflation and increased financing costs due to interest rate developments. 
2 The defendant instructed a consultancy firm to support it in the implementation of 
a ‘transformation process’ in order to ensure the long-term survival of the 
company and its competitiveness. 
3 The change in strategic direction entailed a transformation in all areas of the 
company, but in particular category management, logistics, marketing and a 
reorganisation of the stores (for example, shelf extensions with new ceiling 
heights were planned, which made new, lower floors necessary). 
4 On the advice of the consultancy firm, the defendant organised an online ‘Supplier 
Day conference’ on 16 May 2023, during which it provided its suppliers with an 
overview of the current market situation and related problems as well as the 
current losses on the part of the defendant. The transformation process undertaken 
by the defendant was explained as an outlook for the future,. 
5 During the Supplier Day conference, the defendant announced to its suppliers that 
a request for financial support for the transformation process would follow. 
6 On 17 May 2023, follow-up emails with attached pro-forma invoices for different 
lump sums were sent out. Those invoices served the purpose and overall plan of 
financing the costs of that transformation process by way of a monetary 
contribution from suppliers. The emails were each addressed to one supplier and 
were sent simultaneously. 
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7 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 
conference, those emails are identical for all suppliers: 
‘… 
In order to implement [that transformation process], we need your support. 
Specifically, [the defendant] has the expectation that you, as a key account, will 
make an investment of EUR 15 000 [note: the emails contain different amounts] 
towards our joint future. 
We have already issued a pro-forma invoice for that purpose. 
We will follow up on your willingness to provide support as a partner. Please note 
that your investment will sustainably strengthen our partnership and support us in 
building a successful future together. It is in your hands to turn that plan into 
reality.’ 
8 On 10 November 2023, the applicant filed 16 separate applications against the 
defendant with the Kartellgericht (Cartel Court, Austria) for the imposition of an 
appropriate fine pursuant to Paragraph 6(2) of the FWBG on the grounds that the 
defendant, as a buyer, had infringed Paragraph 5c(1) of the FWBG, read in 
conjunction with point 4 of Annex I thereto, by demanding a payment from 16 
suppliers that was not related to the sale of agricultural and food products. 
9 The present Chamber of the Oberlandesgericht Wien (Higher Regional Court, 
Vienna, Austria), which has made the request for a preliminary ruling, is ruling on 
four requests for payment amounting to between EUR 10 000 and EUR 18 000. 
The essential arguments of the parties in the main proceedings 
10 According to the applicant, the defendant had infringed Paragraph 5c(1) of the 
FWBG, read in conjunction with point 4 of Annex I thereto, with each of the 
requests for payment. 
11 The condition relating to the ratio of turnover (set out in Paragraph 5a(2) of the 
FWBG) between the turnover of the defendant as a buyer within the meaning of 
Paragraph 5b(2) of the FWBG and the turnover of the supplier within the meaning 
of Paragraph 5b(3) of the FWBG, which is necessary for the application of 
Section 2 of the FWBG, is fulfilled. 
12 The defendant challenges the alleged infringement of the FWBG on the ground 
that the defendant did not request any payments within the meaning of 
Paragraph 5c(1) of the FWBG, read in conjunction with point 4 of Annex I 
thereto. The defendant had merely issued a request for investment, with an explicit 
reference to the voluntary nature of the payment. 
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Submission regarding the separate filing of the applications 
13 The applicant submits that the defendant infringed Paragraph 5c(1) of the FWBG, 
read in conjunction with point 4 of Annex I thereto, 16 times by demanding a 
payment prohibited under Paragraph 5c(1) of the FWBG, read in conjunction with 
point 4 of Annex I thereto, from 16 different suppliers in various amounts. 
14 The relevant part of the FWBG transposed the UTP Directive. The choice of 
wording in the UTP Directive and the FWBG clearly indicates that it was the 
intention of the legislature to assess the infringements committed on the basis of 
the supplier and the buyer who were individually involved or to use those two 
individuals as the central identity-shaping assessment criterion. That already 
follows from the definitions of ‘buyer’ and ‘supplier’ since those terms were 
defined as ‘any natural or legal person, irrespective of their place of 
establishment’ or ‘a group of such natural and legal persons’. Read in conjunction 
with the provisions on the calculation of the relevant annual turnover 
(Paragraph 5a(2) of the FWBG), it could be inferred that ‘buyer’ and ‘supplier’ – 
based on the definitions of ‘autonomous enterprise’, ‘partner enterprise’ and 
‘linked enterprise’ in the Annex to Recommendation 2003/361/EC – are 
principally to be regarded as individual and autonomous enterprises, except in the 
case of a group of enterprises. 
15 When drafting the penalty, the Austrian legislature decided to provide for a 
maximum amount of EUR 500 000 instead of a percentage of the annual turnover 
(Paragraph 6(2) of the FWBG). 
16 The singular form for ‘supplier’ and ‘buyer’ is used in the list of individual 
prohibited unfair trading practices established by law. The intended use of the 
singular form is logically related to the annual turnovers to be used in accordance 
with Paragraph 5a FWBG, which are generally only to be calculated for 
‘autonomous enterprises’, ‘partner enterprises’ and ‘linked enterprises’. The 
specific choice of the singular form for ‘supplier’ or ‘buyer’ follows, in particular, 
from the wording of the unfair trading practice under point 4 of Annex I to the 
FWBG. That provision states that requesting one or more payments (use of the 
plural) from a supplier constitutes an unfair trading practice. 
17 The protective purpose of the UTP Directive as well as the second section of the 
FWBG requires separate proceedings to be conducted for each supplier affected 
by an unfair trading practice on the part of a buyer. 
18 The UTP Directive, transposed in the second section of the FWBG, does not – as 
claimed by the defendant – constitute a ‘special cartel law’. Rather, a regulatory 
environment should be created in which the negotiation process between the 
players in the food supply chain leads to a fair outcome. 
19 A distinction must be drawn in that regard between problems arising from 
potentially unfair trading practices and problems relating to anti-competitive 
conduct. The UTP Directive is not concerned with protecting competition as an 
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institution or with protecting consumers from misleading advertising and other 
unfair practices, but with maintaining an appropriate balance of interests between 
suppliers and their customers in the business-to-business sector (see recitals 1 and 
6). 
20 In addition, it is clear from recitals 7 and 14 of the UTP Directive that its 
protection extends to primary producers in the agricultural and food supply chain, 
who need to be protected against the direct or indirect negative effects of unfair 
trading practices. That is always based on the relative bargaining power between 
the individual supplier and the individual buyer, which is to be assessed on the 
basis of the respective annual turnover. 
21 It is precisely the existence of an imbalance in that bargaining power – between 
the individual supplier and the individual buyer – that opens up the scope of 
application of the UTP Directive and thus the need to combat unfair trading 
practices. The imbalance in bargaining power therefore constitutes an essential 
characteristic of the individual infringement. As regards the identity of the act, on 
account of the protective purpose of the UTP Directive, the individual relationship 
between buyer and supplier needs to be taken into account, on the basis of which 
the individual degree of unlawfulness of the unfair trading practice used is to be 
assessed. 
22 In the explanatory memorandum to the draft UTP Directive (Proposal for a 
Directive of the European Parliament and of the Council on unfair trading 
practices in business-to-business relationships in the food supply chain, 12 April 
2018, COM(2018) 173 final, 2018/0082 (COD), (‘the draft UTP Directive’) eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52018PC0173, accessed 
on 3 January 2024), the European Commission clearly made the point that cartel 
law has a scope that is different from the law on combating unfair trading 
practices and that those sets of rules exist independently alongside each other and 
are complementary to each other. Last, the legal basis underpinning the adoption 
of the UTP Directive is also worth noting. If the intention had been to create 
competition rules (special cartel law) for the agricultural and food supply chain, 
Article 103 TFEU would have been available as a legal basis. That option was not 
used, however. Instead, Article 43(2) TFEU was chosen, which is aimed at 
achieving the objectives of the common agricultural and fisheries policy. 
23 This means that there is no basis for the application of the legal concept of a 
single, complex and continuous infringement developed in European competition 
law. 
24 When drafting the penalty, the Austrian legislature chose, unlike in cartel law, to 
lay down a fixed maximum amount instead of a percentage. Within that maximum 
amount, the turnover size category (Paragraph 5a(2) of the FWBG) of a buyer will 
also be relevant when assessing a specific fine. While a penalty of up to 
EUR 500 000 would pose an existential threat for a buyer falling under point 1 of 
that provision, in the case of a buyer in the higher turnover categories up to 
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point 6 of that provision, that does not appear to be suitable for adequately 
reflecting serious and far-reaching offences within a common maximum amount. 
Rather, similarly to administrative criminal law, the principle of cumulation 
should be assumed to apply here, meaning that a fine of EUR 500 000 should be 
imposed for each individual infringement. In connection with the foregoing 
consideration and with regard to an interpretation in conformity with the UTP 
Directive, this means that the second section of the FWBG is fundamentally based 
on a case-by-case approach and, accordingly, on the conduct of separate 
proceedings. 
25 The conduct of 16 individual proceedings is therefore not an artificial separation 
but is required on the basis of the individual assessment criteria of the FWBG. 
26 The defendant objects to the separate filing of the applications and the separate 
conduct of the proceedings on the ground that all 16 applications filed separately 
by the applicant are based on the same facts and therefore constitute an allegation 
that a single infringement had been committed. Splitting the proceedings 
artificially into 16 proceedings breaches the principle ne bis in idem. 
27 Recently, the ECtHR had based the question of the existence of the same 
punishable act primarily on the factual situation being assessed (same facts) 
(fundamental ruling ECtHR, 10 February 2009, 14939/03, Zolotukhin v. Russia 
paragraph 71 et seq., 82 et seq.). An infringement of Article 4 of Protocol No. 7 to 
the ECHR therefore exists if identical facts or facts which are substantially the 
same lead to multiple prosecutions or punishments. According to the case-law of 
the ECtHR, an ‘idem’ can always be assumed to exist if both offences are based 
on identical or substantially identical facts. In the opinion of the ECtHR, the focus 
should be on those facts which constitute a set of concrete factual circumstances 
that are inextricably linked together in time and space. According to the ECtHR, 
the existence of an identical act, the ‘idem’, must be assumed to exist – 
irrespective of the legal classification or the legal interest affected – if the 
proceedings or decisions are based on the same historical circumstances. The 
Supreme Court emphasised in 11 Os 73/13i: ‘The criteria to be used for the 
assessment are the time, place and object of the acts, the actions taken, the 
perpetrators, the victims and the actual or intended outcome. In this process a set 
of facts which, by their very nature, are inextricably linked and correspond in 
space and in time cannot be divided into artificially separate episodes.’ 
28 That definition of the ‘idem’ means that the allegation, made by the applicant 
against the defendant in 16 proceedings, of an infringement of Paragraph 5c(1) of 
the FWBG, read in conjunction with point 5 of Annex I thereto, concerns a single 
identical set of facts. 
29 Paragraph 6(2) of the FWBG provides that the Cartel Court may ‘… impose a fine 
up to a maximum amount of EUR 500 000’. 
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30 By initiating separate proceedings, the applicant circumvents the legal provision 
providing for one fine of up to a maximum amount of EUR 500 000. That not 
only overburdens the defendant’s financial capacity, but also multiplies the costs 
of the proceedings and places an excessive burden on court operations. 
31 Since all of the requests for investment sent to the suppliers stem from the overall 
plan to offset the costs of the transformation process through a financial 
contribution from its suppliers of agricultural and food products in order to secure 
the continued existence of the defendant, that constitutes a single act. 
32 In the alternative, the defendant submits that this case concerns an allegation that a 
single and continuous infringement had been committed. According to settled 
case-law, an infringement of cartel law may be the result not only of an isolated 
act, but also of a series of acts or of 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 that provision (CJEU, C-697/19 P, 
paragraph 62). That is a legal concept created by way of judge-made development 
of the law, stemming from the landmark decision of the CJEU in Case 
C-49/92 P. The European Courts have held in that regard that ‘[…] because of 
their identical object, the agreements and concerted practices found to exist, 
formed part of systems of regular meetings, target-price fixing and quota–fixing, 
and that those schemes were part of a series of efforts made by the undertakings 
in question in pursuit of a single economic aim, namely to distort the normal 
movement of prices. It […] would be artificial to split up such continuous conduct, 
characterised by a single purpose, by treating it as consisting of several separate 
infringements.’ 
The legal concept of a single and continuous infringement is also used in Austria 
in settled case-law in the case of infringements of competition law (16 Ok 2/15b). 
The concept of ‘single and continuous infringement’ presupposes the existence of 
an ‘overall plan’ into which the various acts fit owing to their identical object, 
irrespective of whether one or more of those acts could also, in themselves and 
taken in isolation, constitute an infringement of competition law. 
33 European case-law also applies that legal concept to infringements of Article 102 
TFEU/Paragraph 5 of the KartG. According to the General Court of the European 
Union (T-321/05, paragraph 892 et seq.), when applying the legal concept of a 
single and continuous infringement to abusive conduct, it is necessary to establish 
whether the various instances of conduct complement each other. 
34 The legal concept of a single and continuous infringement is also applicable to 
infringements of the FWBG and the provisions transposing the UTP Directive in 
Paragraph 5a et seq. of the FWBG if the infringements complement each other, 
that is to say that they are similar in the way they are committed, they are closely 
related in time and are supported by a general intent or plan, given that the 
provisions transposing the UTP Directive in Paragraph 5a et seq. of the FWBG 
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and the infringements referred to therein have a systematic approach in terms of 
their protective purpose, legislative objective and effect that is very similar to the 
prohibitions under cartel law in Article 102 TFEU/Paragraph 5 of the KartG. 
35 The conduct of the defendant towards the 16 suppliers concerns a complex of 
facts which, by their very nature, are inextricably linked. The investment plan was 
developed in its entirety by the management consultancy firm instructed by the 
defendant and (partially) accepted by the defendant. The aim was to achieve an 
improved market presence by way of restructuring and additional investments. To 
that end, financially strong suppliers were to be invited to invest in order to 
contribute to the survival of their customer. Against that background, it can be 
assumed that the abovementioned requirement of an ‘overall plan’ is clearly 
fulfilled in connection with the request for investment. 
36 An analysis of the purpose of the UTP Directive and the FWBG shows that the 
FWBG may be categorised as competition law or cartel law. 
37 It follows from the recitals of the UTP Directive that it is intended to protect 
suppliers in a sector-specific way from customers with a strong market power. To 
that end, the UTP Directive defines a number of types of ‘conduct’ that appear to 
be absolutely or relatively prohibited. It is striking that those types of conduct by 
dominant undertakings already infringe the provisions of cartel law on the 
assessment of abusive practices. The abovementioned practices are closely related 
to cartel law. The UTP Directive and cartel law pursue the same basic idea of 
‘protection against market imbalances’. 
38 In particular, the wording of recital 9, namely ‘bargaining power resulting from 
the economic dependence of the supplier on the buyer’, establishes a direct link to 
the provisions on the assessment of abusive practices under Paragraph 5 of the 
KartG/Article 102 TFEU. 
39 Moreover, the description of ‘fair and efficiency-creating agreements’ is broadly 
comparable to the exception in Article 101(3) TFEU or Paragraph 2 of the KartG. 
40 Last, the structural design of the UTP Directive and also of Paragraph 5a et seq. of 
the FWBG should not be disregarded, which, in terms of the ‘list of prohibited 
conduct’, is broadly similar to the provisions of the same name in the block 
exemption rules under cartel law, known as the ‘black list’ and the practices 
permitted under certain conditions, known as the ‘grey list’. 
41 In the light of the foregoing, it must be concluded that the legal concept of a single 
and continuous infringement has been developed for overall situations such as 
those in the present case. The scheme of the provisions in Paragraph 5a et seq. of 
the FWBG is based on cartel law, in particular Paragraph 5 of the KartG, the 
scope of application of which differs from the UTP Directive and the FWBG only 
with regard to the strict market dominance requirement. Ultimately, it would be 
artificial if a coherent infringement characterised by an overall plan were to be 
split into separate infringements simply because it was being prosecuted under 
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Paragraph 5a et seq. of the FWBG and not under Paragraph 5 of the KartG. 
Rather, the case-law on single and continuous infringements should also be 
applied to infringements of the FWBG. 
42 The failure to apply the legal concept of a single and continuous infringement or a 
continuous offence also breaches the principle of equivalence under EU law. 
43 The obligation to guarantee the practical effectiveness of EU law, which is based 
on the Member States’ duty of loyalty and cooperation under Article 4(3) TEU, 
also includes the effective protection of subjective legal positions derived from an 
objective rule of conduct when implementing EU law. That results in specific 
requirements for the structuring of national law applicable in the absence of any 
provisions under European law. The substantive and procedural rules for 
penalising infringements of EU law must therefore be equivalent to the rules 
under which corresponding infringements of national law would be penalised 
(principle of equivalence). 
44 That also applies to the relationship between Paragraph 5a et seq. of the FWBG, 
which is based on EU law (the UTP Directive), and the national provisions in 
Paragraph 1 et seq. of the KartG. Procedural autonomy and also in part the 
substantive freedom of shaping laws (when transposing the UTP Directive) ends 
where equivalence is impaired. Such an impairment of equivalence exists if the 
domestic enforcement of Paragraph 4a et seq. of the FWBG were to follow 
different enforcement arrangements despite being largely similar to the KartG. 
The same also follows from the UTP Directive itself, according to which the 
buyer’s rights of defence (guaranteed under EU law) must be safeguarded by the 
enforcement authorities (recital 35 and Article 6(2) of the UTP Directive). Those 
rights of defence must not be reduced by excessively splitting a (continuous) 
infringement, since that would be incompatible with the principle of equivalence. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
45 In view of the objective defined in the UTP Directive, namely to compensate for 
the frequent imbalances in bargaining power between buyers and suppliers in the 
agricultural and food supply chain, it is necessary to measure national 
implementation against that guiding principle. Next, the financial penalty under 
Paragraph 6(2) of the FWBG must be classified in legal terms and, last, the 
Austrian doctrine of concurrence regarding the treatment of multiple 
infringements of the law must be discussed and the system placed in relation to 
the UTP Directive. 
46 The power imbalance between the economic performance of supplier and 
customer (buyer) is expressed in Article 1 of the UTP Directive on the basis of 
turnover thresholds, which were transposed into Austrian law by means of 
points 1 to 5 of Paragraph 5a(2) of the FWBG. In accordance with the UTP 
Directive, points 1 to 5 of Paragraph 5a of the FWBG define maximum and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-311/24 
 
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minimum turnover thresholds as a prerequisite for the application of Paragraph 5a 
et seq. of the FWBG. 
47 The recitals of the UTP Directive were not included in the FWBG. However, they 
are reproduced, in essence, in the legislative materials, specifically in the 
explanatory notes to the government bill (ErlRV 1167 XXVII. GP, 1) for the 
FWBG. 
48 Paragraph 6(2) of the FWBG, which transposes Article 6 of the UTP Directive, 
provides for the imposition of a fine in the event of an infringement of the 
prohibition of unfair trading practices. 
49 In the opinion of the present Chamber, that rule imposing a penalty is of a 
criminal nature. 
The fine under the Austrian Law on cartels 
50 According to its purpose and effect, the fine under the Austrian Law on cartels is a 
penalty of a quasi-criminal nature (Supreme Court in RIS-Justiz RS0120560). The 
purpose of fines under Paragraph 29 of the KartG is to punish wrongdoing 
(repression) and to prevent the commission of further infringements (prevention), 
irrespective of whether unauthorised conduct is still ongoing or its effects still 
persist. Fines under cartel law are a means of State enforcement and are therefore 
part of criminal law in the broader sense (Koprivnikar/Mertel in Egger/Harsdorf-
Borsch, Kartellrecht § 29 KartG 2005). 
51 The fine under Paragraph 29 of the KartG also fulfils the criteria established by 
the CJEU in Case C-151/20 for a classification as a penalty of a criminal nature. 
52 In Case C-151/20, the CJEU ruled in that regard: 
‘Paragraph 29: Article 50 of the Charter provides that “no one shall be liable to be 
tried or punished again in criminal proceedings for an offence for which he or she 
has already been finally acquitted or convicted within the Union in accordance 
with the law”. Therefore, the ne bis in idem principle prohibits a duplication both 
of proceedings and of penalties of a criminal nature for the purposes of that article 
for the same acts and against the same person (judgment of 20 March 2018, 
Menci, C-524/15, EU:C:2018:197, paragraph 25 and the case-law cited). 
Paragraph 30: As regards the assessment as to whether the proceedings and 
penalties concerned are criminal in nature, which is a matter for the referring 
court, it must be noted that three criteria are relevant. The first is the legal 
classification of the offence under national law, the second is the intrinsic nature 
of the offence, and the third is the degree of severity of the penalty which the 
person concerned is liable to incur (see, to that effect, judgments of 5 June 2012, 
Bonda, C-489/10, EU:C:2012:319, paragraph 37, and of 20 March 2018, Menci, 
C-524/10, EU:C:2018:197, paragraph 26 and 27). 
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Paragraph 31: It should be pointed out in that regard that the application of 
Article 50 of the Charter is not limited to proceedings and penalties which are 
classified as “criminal” by national law, but extends regardless of such a 
classification under national law to proceedings and penalties which must be 
considered to have a criminal nature on the basis of the two other criteria referred 
to in the preceding paragraph (see, to that effect, judgment of 20 March 2018, 
Menci, C-524/15, EU:C:2018:197, paragraph 30).’ 
The fine under Paragraph 6(2) of the FWBG 
53 The criteria established in connection with the classification of the fine under the 
KartG as a penalty of a criminal nature are also fulfilled by Paragraph 6(2) of the 
FWBG. 
54 The threat of a fine in Paragraph 6(2) of the FWBG transposes the provision 
imposing a penalty in Article 6(1)(e) of the UTP Directive. According to 
Article 6(2) of the FWBG, the severity and duration of the infringement, the 
enrichment achieved based on the duration of the infringement, the degree of 
culpability and the economic capacity must be taken into account when 
calculating the fine. In accordance with the requirements of the last sentence of 
Article 6(1) of the UTP Directive, that penalty is to be effective, proportionate and 
dissuasive, taking into account the nature, duration, recurrence and gravity of the 
infringement. Article 6(1) of the UTP Directive thus provides, as a benchmark for 
the severity of the penalty that may be imposed on the person concerned 
(C-151/20, Bundeswettbewerbsbehörde v Nordzucker AG, Südzucker AG, Agrana 
Zucker GmbH), that it must be an effective way of penalising wrongdoing 
(repression) and preventing the commission of further infringements in the sense 
of deterrence (prevention). Since the repressive and preventive effect, as the 
typical characteristics of a penalty (Supreme Court 16 Ok 52/05), must be 
achieved in accordance with the clear requirements of the last sentence of 
Article 6(1) of the UTP Directive, the transposition in Austria by Paragraph 6(2) 
of the FWBG with a penalty of up to EUR 500 000 establishes a penalty of a 
criminal nature. 
55 In view of that legal classification of the Austrian rule imposing a penalty as a 
provision imposing a penalty of a criminal nature, the question to be answered is 
how conduct that repeatedly infringes Paragraph 5c(1) of the FWBG, read in 
conjunction with point 4 of Annex I thereto (Article 3(1)(d) of the UTP Directive), 
as has been alleged by the applicant in the present proceedings, is to be penalised. 
Concepts in Austrian criminal law in the event of multiple infringements of the 
law – the doctrine of concurrence 
56 In contrast to the Strafgesetzbuch (Austrian Criminal Code, ‘the StGB’) and the 
Verwaltungsstrafgesetz (Austrian Law on administrative offences, ‘the VStG’), 
the FWBG makes no provision for the way in which penalties are to be imposed if 
several infringements are committed. 
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57 The Austrian Law on cartels does not contain any provisions to that effect either 
(see Koprivnikar/Mertel in Egger/Harsdorf-Borsch, Kartellrecht, § 29, 
paragraph 5). 
58 In the case of repeated, continuous infringements of competition law, the legal 
concept of a single and continuous infringement has developed, under the 
conditions explained in more detail below, according to case-law and prevailing 
legal theory, which dogmatically treats multiple infringements as a single act in 
the sense of Idealkonkurrenz (multiple offences committed through one act). 
59 In the present case, the question arises as to whether the legal concept of a single 
and continuous infringement should be applied in the case of multiple 
infringements of the FWBG. That requires a more detailed analysis of the legal 
concept of a single and continuous infringement. 
Single and continuous infringement 
60 Regulation No 1/2003 on the implementation of the rules on competition laid 
down in Articles 81 and 82 of the Treaty uses the term ‘continuing infringement’ 
in Article 25(2) thereof. 
61 According to the settled case-law of the CJEU, the concept of ‘single and 
continuous infringement’ presupposes the existence of an ‘overall plan’ which 
consists of various acts, each of which has the identical object of distorting 
competition in the internal market, irrespective of the fact that one or more of 
those acts could also, in themselves and taken in isolation, constitute an 
infringement of Article 101 TFEU (CJEU, C-702/19 P; CJEU, C-642/13 P). 
62 Accordingly, if the different actions form part of an ‘overall plan’ because their 
identical object distorts competition within the common market, the Commission 
is entitled to impute responsibility for those actions on the basis of participation in 
the infringement considered as a whole (CJEU, C-642/13 P; see, to that effect, 
judgment in Cases C-293/13 P and C-294/13 P, paragraph 156 and the case-law 
cited). 
63 If those conditions are met, it would be artificial to split up continuous conduct, 
characterised by a single purpose, by treating it as a number of separate 
infringements (see CJEU, C-642/13 P; CJEU, C-702/19 P; CJEU, C-700/19 P). 
64 In contrast to Article 25 of Regulation 1/2003, the Austrian Law on cartels does 
not differentiate between continuous infringements and other types of 
infringements (Schwarz in Egger/Harsdorf-Borsch, Kartellrecht § 33 KartG 2005). 
65 Since Decision 16 Ok 2/15b, the legal concept of a single and continuous 
infringement in the case of infringements of Article 101 TFEU has also been 
recognised in Austria by the highest courts. 
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17 
66 The Supreme Court ruled that several successive unlawful actions constitute a 
continuous infringement and a legal unity if the actions are linked by a common 
purpose (all actions have the same objective). The individual sub-acts must be 
similar in the way they are committed, be closely related in time and be supported 
by a general intent (16 Ok 2/15b). 
67 Such an overall infringement is generally characterised by continuous anti-
competitive conduct of the participants in the cartel with a single economic 
objective (16 Ok 3/23m). 
68 The Supreme Court emphasises that, for the purpose of characterising various 
instances of conduct as a continuous infringement, it is necessary to establish 
whether they are complementary, in that each of them is intended to deal with one 
or more consequences of the normal pattern of competition, and whether, through 
interaction, they contribute to the attainment of the set of anti-competitive effects 
desired by those responsible, within the framework of an overall plan based on a 
single objective. An overall plan need not have existed from the outset, but may 
have been developed over time (16 Ok 2/15b). 
69 This means that, according to the consistent case-law of the CJEU and the 
Supreme Court, the legal concept of a single and continuous infringement in 
competition law presupposes the overall plan of the parties involved to distort 
competition through their actions. 
70 Applying the legal concept of a single and continuous infringement developed in 
competition law to the penalising of multiple infringements of the FWBG does not 
appear to be consistent with the system: 
71 In view of the fact that the UTP Directive and therefore the FWBG are primarily 
aimed at compensating for differences in bargaining power between buyers and 
suppliers in the agricultural and food supply chain and the focus is on relative 
bargaining power (recital 14 of the UTP Directive), it is clear that in the case of 
multiple infringements of the prohibition on unfair trading practices, the 
classification of those acts as a single and continuous infringement fails due to the 
lack of an overall plan to distort competition in the sense of a broad strategy of 
obstruction. The individual supply relationship and the relative bargaining power 
imbalance within that relationship is always the key issue under the FWBG. 
72 Austrian legal scholars also deny that there is a basis for the application of the 
legal concept of a single and continuous infringement developed in competition 
law in connection with unfair trading practices (Seper in Egger/Harsdorf-Borsch, 
Kartellrecht § 6 FWBG, paragraph 6). 
73 This means that the question of how multiple infringements of the prohibitions 
laid down in the UTP Directive are to be prosecuted must be resolved in 
accordance with Austrian (administrative) criminal law. 
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74 As will be shown below, it is unclear to the present Chamber whether the 
approach according to Austrian legal doctrine is in line with the criteria set out in 
the UTP Directive. 
Principle of absorption versus principle of cumulation 
75 The question of how to deal with a case where a person commits several 
infringements is governed in Austrian criminal law by Paragraph 28 of the StGB 
and in Austrian administrative criminal law by Paragraph 22 of the VStG. 
76 Paragraph 28(1) of the StGB provides that the ‘principle of absorption’ is to apply 
in the case of similar penalties. 
77 Paragraph 28(1) of the StGB reads: ‘Where, through one act or several separate 
acts, a person has committed several criminal offences of the same or different 
nature and those offences are tried concurrently, a single custodial sentence or fine 
shall be imposed if the coinciding laws provide for only custodial sentences or 
only fines. That penalty shall be determined in accordance with the law that 
imposes the highest penalty. However, apart from cases of extraordinary 
mitigation of a sentence, no penalty lower than the highest of the minimum 
penalties provided for in the coinciding laws may be imposed.’ 
78 By contrast, in Paragraph 22(2) of the VStG, Austrian administrative criminal law 
provides that the ‘principle of cumulation’ is to apply as a basic rule when several 
punishable administrative offences coincide: ‘If a person has committed several 
administrative offences through several separate acts or if an act is subject to 
several non-exclusive penalties, the penalties shall be imposed in parallel. The 
same applies if administrative offences coincide with other criminal offences to be 
punished by an administrative authority.’ 
79 The principle of cumulation applies to all cases of Idealkonkurrenz (multiple 
offences committed through one act) and of Realkonkurrenz (multiple offences 
committed through multiple acts). Thus, if the offender commits several separate 
offences by repeating the offence, a penalty must be imposed for each 
administrative offence, with the result that several penalties are imposed in 
parallel (Lewisch in Lewisch/Fister/Weilguni, VStG3, § 22, paragraph 9). 
80 However, when cumulating penalties, the restrictions under EU law, in particular 
the principle of proportionality, must be taken into account (CJEU, C-64/18; 
CJEU, C-746/21 P). 
81 The FWBG does not contain any provision as to which principle is to apply when 
imposing penalties in the event of concurrent infringements. 
82 Based on the consideration that the application of the principle of cumulation does 
not require any further provision apart from the provision imposing the penalty as 
such, whereas the principle of absorption (the set-off principle) must entail 
provisions on set-off, it is safe to assume that in the event of multiple 
BUNDESWETTBEWERBSBEHÖRDE 
 
19 
infringements of the FWBG, the penalties (fines) are to be imposed in parallel in 
accordance with the principle of cumulation. 
83 According to Austrian (administrative) criminal law doctrine, however, neither the 
principle of absorption nor the principle of cumulation would apply in the present 
case, since the conduct of which the applicant accuses the defendant would have 
to be assessed as a ‘unity of action’ (continuous offence). 
Unity of action – several offences committed by means of a single act 
84 Decision 13 Os 1/07g of the Supreme Court, sitting in extended composition to 
rule on a fundamental question of law, marked a paradigm shift from the legal 
concept of a continuous offence to that of unity of action. 
85 That court gave the following reasons in 13 Os 1/07g: 
‘In so far as, in earlier case-law, the concept of a “continuous offence” (based on 
further requirements occasionally demanded but handled inconsistently) combined 
several acts that constitute the same offence (whether attempted or completed) and 
were committed with a “general intent” into a legal unity of action that had not 
been provided for by any law, with the consequence that only one single 
punishable offence would be established by each of the independent similar 
offences, the Supreme Court already abandoned that legal concept in substance by 
confirming its procedural divisibility in the landmark decision SSt 56/88 = EvBl 
1986/123. […]. Recognising the continuation of an offence solely on the basis of 
unities of action is a deliberate rejection of an absolute approach to continuous 
offences in favour of an offence-specific approach. The difference between the 
legal concept of a continuous offence and unity of action is that the legal concept 
of a continuous offence is derived from the general part of substantive criminal 
law, whereas the legal concept of unity of action combines similar actions in 
accordance with individual elements of offences. The criteria for combination can 
therefore vary between offences without creating contradictions that affect the 
entire criminal law system. Following Jescheck/Weigend5 (711 et seq.), there is 
unity of action in the case of mere commitment of the offence, that is to say the 
fulfilment of the minimum requirements of the offence provided for by law, in 
particular in the case of multi-act offences and continuous offences (unity of 
action in the narrower sense) and where it is only a question of the intensity of the 
uniform execution of the offence (SSt 56/88), namely in the event of a repeated 
commitment of the same offence in quick succession, accordingly, where there is 
only a quantitative increase (uniform wrongdoing) and uniform motivation 
(uniform guilt), even if highly personal legal interests of different persons have 
been infringed, as well as in the case of continuous commitment of the offence, 
that is to say, gradual steps towards a commitment of the full offence through 
several individual acts in the case of a uniform situation and the same motivation, 
for example when transitioning from attempt to completion or in the case of 
burglary in two stages (unity of action in the broader sense).’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-311/24 
 
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86 Since then, unity of action in the broader sense has been the legal concept that is 
applied in settled case-law (RIS-Justiz RS0122006) provided that the following 
conditions are met: 
– repeated commitment of the same offence, that is to say, that there is a 
quantitative increase (uniform wrongdoing), 
– in quick succession, 
– with uniform motivation (uniform guilt). 
87 If those conditions are met, the legal concept of unity of action must also be 
applied if the legal interests of different persons have been infringed (Ratz in 
Höpfel/Ratz, Wiener Kommentar2 StGB, Vorbemerkungen zu §§ 28-31, 
paragraph 89). 
88 The combination of actions to form a unity of action means that the offence has 
been committed only once (RIS-Justiz RS0120233; RS0122006). That is because 
a unity of action constitutes one offence, both substantively and procedurally (11 
Os 51/11a). 
89 In administrative criminal law, the legal concept of a continuous offence continues 
to be applied in the case of intentional offences. The Verwaltungsgerichtshof 
(Supreme Administrative Court, Austria) defines the continuous offence as ‘a 
series of unlawful individual acts which, due to the similarity of the form of 
commission and the external circumstances within a recognisable temporal 
connection’, linked by a ‘preconceived single decision’ (‘general intent’), ‘come 
together to form a unit’, subject to the proviso that the single decision must be 
directed towards the successive achievement of a roughly defined overall 
objective. Most recently, the Supreme Administrative Court has described the 
single decision as a ‘motive for committing repeated, similar offences’ (Lewisch 
in Lewisch/Fister/Weilguni, VStG3, § 22, paragraph 20). The function of the 
continuous offence is to combine the repeated occurrence of the offence 
(‘continuous offences’) into a single ‘continuous offence’. If a continuous offence 
exists, it therefore constitutes a single offence in legal terms for which a single 
penalty must be imposed; there is no room for cumulation of penalties for the 
individual acts committed as part of the continuous offence (ibid, paragraph 24). 
Conclusion 
90 For the situations at issue, that means that the allegations made by the applicant 
against the defendant of having infringed Paragraph 5c(1) of the FWBG, read in 
conjunction with point 4 of Annex I thereto, by sending 16 emails including pro-
forma invoices to 16 different suppliers with the abovementioned content, which 
were sent at the same time, would have to be classified as a single offence 
according to Austrian criminal law doctrine. 
BUNDESWETTBEWERBSBEHÖRDE 
 
21 
91 The applicant’s allegation concerns the repeated similar commitment of the same 
offence, namely that set out in Paragraph 5c(1) of the FWBG, read in conjunction 
with point 4 of Annex I thereto, (uniform wrongdoing) closely related in terms of 
time, even simultaneously, with uniform motivation in the sense of a general 
intent to implement the transformation process under the same external 
circumstances, namely, in particular, the implementation of the advice provided 
by a commissioned management consultant (uniform guilt). Thus, the acts must be 
combined as a unity of action in accordance with established national case-law 
(RIS-Justiz RS0122006), which means that the multiple infringements of the 
FWBG alleged by the applicant against the defendant must be classified as a 
single infringement of the FWBG. 
92 This means that – if the applicant’s accusation proves to be correct after evidence 
has been taken – only one fine with a maximum penalty of EUR 500 000 would 
have to be imposed for only one single offence, even if 16 supply relationships 
were affected. 
93 However, in the opinion of the present Chamber, that result is at variance with the 
objective pursued in the UTP Directive of compensating for existing imbalances 
in terms of bargaining power between buyers and suppliers in the agricultural and 
food supply chain, since such compensating can only ever be achieved by 
reference to the individual supply relationship. The fact that the individual supply 
relationship and the relative difference in bargaining power in that relationship are 
always the key issue for the purposes of the UTP Directive also follows from 
Article 1 of the UTP Directive, which establishes an annual turnover ratio 
between supplier and buyer and assumes that the buyer’s bargaining position is at 
risk if that annual turnover ratio applies (see also recital 7 of the UTP Directive). 
That objective suggests that each infringement of the FWBG should be analysed 
separately for the buyer and the supplier with regard to their annual turnover 
figures. That way, the individual supplier relationship is prioritised. 
94 By combining the infringements of the FWBG committed by a buyer against a 
number of suppliers as a unity of action, the relative bargaining power, and the 
frequently ensuing inequality that was the reason for adopting the UTP Directive, 
is no longer the focus of the assessment. Classifying the conduct of a buyer in 
relation to a number of suppliers as a unity of action that fulfils the constituent 
elements of an offence also means that the requirement of effectiveness, 
proportionality and deterrence of the fine is not satisfied and thus the effectiveness 
of the UTP Directive may suffer. By contrast, in the referring court’s view, the 
cumulative imposition of fines according to the number of supply relationships 
affected by the infringement or infringements would effectively take account of 
relative bargaining power. 
95 Since such cumulation of fines is not permitted under national criminal law 
doctrine and thus under Austrian law, the CJEU is called upon to interpret the 
UTP Directive and the conformity of Austrian law with that directive in 
accordance with the questions referred for a preliminary ruling. 
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Summary of the reasoning in the request for a preliminary ruling 
Question 1: 
96 According to Austrian criminal law doctrine, the conduct of which the applicant 
accuses the defendant, namely of sending several requests for payment (pro-forma 
invoices) unrelated to the sale of agricultural and food products to 16 suppliers at 
the same time, with the same motive (implementation of the transformation 
process) and in the same factual situation, would have to be classified as a unity of 
action in the sense of a single infringement of Paragraph 5c(1) of the FWBG, read 
in conjunction with point 4 of Annex 1 thereto. 
97 It appears questionable whether the classification of the conduct of which the 
applicant accuses the defendant as a unity of action resulting in the imposition of a 
(single) fine would achieve, in an equivalent and effective way, the objective 
defined in the UTP Directive of compensating for existing imbalances in terms of 
bargaining power between buyers and suppliers in the agricultural and food 
supply chain. Question 1 and its sub-questions 1(a) and 1(b) are intended to clarify 
whether the classification as a single offence to be made according to national 
legal doctrine is consistent with the UTP Directive. 
Question 2: 
98 In the absence of a provision in the FWBG for the imposition of penalties in the 
event of several offences being committed concurrently, a fine would have to be 
imposed cumulatively for each offence in the event that the applicant’s allegation 
of multiple infringements of Paragraph 5c(1) of the FWBG, read in conjunction 
with point 4 of Annex I thereto, must be classified as several offences and not as a 
single offence. Whether the application of the principle of cumulation in the 
present case is in conformity with the UTP Directive is the subject of the second 
question referred. 
99 If the conduct of which the applicant accuses the defendant vis-à-vis 16 suppliers, 
which is classified under Austrian legal doctrine as constituting a unity of action 
that fulfils the constituent elements of an offence, is found to be contrary to the 
UTP Directive and the first question referred is therefore answered in the 
affirmative, the referring court’s decision requires clarification as to whether the 
application of the principle of cumulation, that is to say the imposition of several 
fines in parallel under Paragraph 6(2) of the FWBG, is in conformity with the 
UTP Directive.