Provisional text
JUDGMENT OF THE COURT (Second Chamber)
29 January 2026 (*)
( Reference for a preliminary ruling – Agriculture – Unfair competition – Unfair trading practices – Directive (EU) 2019/633 – Prohibition – Article 3(1)(d) – Payment request not related to the sale of the agricultural and food products of the supplier – Point (e) of the first subparagraph of Article 6(1) – Power to impose fines – Classification as a ‘single infringement’ of a number of prohibited unfair trading practices giving rise to the imposition of a single fine – Principle ne bis in idem – National legislation providing for a cap on fines )
In Case C‑311/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), made by decision of 26 April 2024, received at the Court on 29 April 2024, in the proceedings
Bundeswettbewerbsbehörde
v
M. GmbH,
THE COURT (Second Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        the Bundeswettbewerbsbehörde, by C.F. Winkler,
–        M. GmbH, by S. Albiez, Rechtsanwalt,
–        the Austrian Government, by A. Posch, J. Schmoll and P. Thalmann, acting as Agents,
–        the European Commission, by A. Dawes, M. ter Haar and M. Zerwes, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 11 September 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of point (e) of the first subparagraph of Article 6(1) 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 (OJ 2019 L 111, p. 59).
2        The request has been made in relation to four joined cases between the Bundeswettbewerbsbehörde (Federal Competition Authority, Austria)
(‘the BWB’) and the company M. GmbH regarding the validity of requests for payment made by that company to its suppliers.
Legal context
European Union law
The TFEU
3        Article 39(1) TFEU provides as follows:
‘The objectives of the common agricultural policy shall be:
(a)      to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b)      thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c)      to stabilise markets;
(d)      to assure the availability of supplies;
(e)      to ensure that supplies reach consumers at reasonable prices.’
4        Article 43(2) TFEU provides as follows:
‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 40(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.’
Directive 2019/633
5        Recitals 1, 6 to 9, 14, 16, 24, 34 and 39 to Directive 2019/633 are worded as follows:
‘(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. Such practices may, for example: grossly deviate from good commercial conduct, be contrary to good faith and fair dealing and be unilaterally imposed by one trading partner on the other; impose an unjustified and disproportionate transfer of economic risk from one trading partner to another; or impose a significant imbalance of rights and obligations on one trading partner. Certain practices might be manifestly unfair even when both parties agree to them. A minimum [European] 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.
…
(6)      While business risk is inherent in all economic activity, agricultural production is particularly fraught with uncertainty due to its reliance on biological processes and its exposure to weather conditions. That uncertainty is compounded by the fact that agricultural and food products are to a greater or lesser extent perishable and seasonal. In an agricultural policy environment that is distinctly more market-oriented than in the past, protection against unfair trading practices has become more important for operators active in the agricultural and food supply chain.
(7)      In particular, such unfair trading practices are likely to have a negative impact on the living standards of the agricultural community. That impact is understood to be either direct, as it concerns agricultural producers and their organisations as suppliers, or indirect, through a cascading of the consequences of the unfair trading practices occurring in the agricultural and food supply chain in a manner that negatively affects the primary producers in that chain.
(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. Where reliance on contract law or self-regulatory initiatives is possible, fear of commercial retaliation against a complainant, as well as financial risks involved in challenging such practices, limit the practical value of those forms of redress. 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. Unfair trading practices are particularly harmful for small and medium-sized enterprises (SMEs) in the agricultural and food supply chain. Enterprises larger than SMEs but with an annual turnover not exceeding EUR 350 000 000 should also be protected against unfair trading practices to avoid the costs of such practices being passed on to agricultural producers. The cascading effect on agricultural producers appears to be particularly significant for enterprises with an annual turnover of up to EUR 350 000 000. The protection of intermediary suppliers of agricultural and food products, including processed products, can also serve to avoid the diversion of trade away from agricultural producers and their associations which produce processed products to non-protected suppliers.
…
(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. While being an approximation, this criterion gives operators predictability concerning their rights and obligations under this Directive. 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.
…
(16)      When deciding whether a particular trading practice is considered unfair, it is important to reduce the risk of limiting the use of fair and efficiency-creating agreements agreed between parties. Therefore, it is appropriate to distinguish between practices that are provided for in clear and unambiguous terms in supply agreements or in subsequent agreements between parties and practices that occur after the transaction has started without having been agreed beforehand, so that only unilateral and retrospective changes to those clear and unambiguous terms of the supply agreement are prohibited. However, certain trading practices are considered as unfair by their very nature and should not be subject to the parties’ contractual freedom.
…
(24)      This Directive does not harmonise the rules on the burden of proof to be applied in proceedings before the national enforcement authorities, nor does it harmonise the definition of supply agreements. Therefore, the rules on the burden of proof and the definition of supply agreements are those laid down by the national law of Member States.
…
(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.’
6        Article 1 of that directive, entitled ‘Subject matter and scope’, provides, 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.
…’
7        Article 3 of that directive, entitled ‘Prohibition of unfair trading practices’, states, 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’.
8        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; the authority may abstain from taking any such decision, if that decision would risk revealing the identity of a complainant or would risk disclosing any other information in respect of which the complainant considers that such disclosure would be harmful to its interests, and provided that the complainant has identified that information in accordance with Article 5(3);
(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.’
9        Article 9 of Directive 2019/633 provides:
‘1.      With a view to ensuring a higher level of protection, Member States may maintain or introduce stricter rules aimed at combating unfair trading practices than those laid down by this Directive, provided that such national rules are compatible with the rules on the functioning of the internal market.
2.      This Directive shall be without prejudice to national rules aimed at combating unfair trading practices that are not within the scope of this Directive, provided that such rules are compatible with the rules on the functioning of the internal market.’
Austrian law
10      Paragraph 5a of 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) (BGBl. 392/1977), as 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), BGBl. I, 239/2021 (‘the FWBG’), provides:
‘(1)      The purpose of the provisions of this Section is to combat unfair trading practices which occur in relation to the sale of agricultural and food products. They transpose [Directive 2019/633]. They do not affect Paragraph 1 or the [Bundesgesetz gegen Kartel und andere Wettbewerbsbeschränkungen (Kartellgesetz 2005) (Law on combating cartels and other restrictions of competition)].
(2)      This Section applies to certain unfair trading practices which occur in relation to sales of agricultural and food products by:
1.      suppliers which have an annual turnover not exceeding EUR 2 million to buyers which have an annual turnover of more than EUR 2 million;
2.      suppliers which have an annual turnover of more than EUR 2 million and not exceeding EUR 10 million to buyers which have an annual turnover of more than EUR 10 million;
3.      suppliers which have an annual turnover of more than EUR 10 million and not exceeding EUR 50 million to buyers which have an annual turnover of more than EUR 50 million;
4.      suppliers which have an annual turnover of more than EUR 50 million and not exceeding EUR 150 million to buyers which have an annual turnover of more than EUR 150 million;
5.      suppliers which have an annual turnover of more than EUR 150 million and not exceeding EUR 350 million to buyers which have an annual turnover of more than EUR 350 million;
…
(3)      This Section applies to sales where either the supplier or the buyer, or both, are established in the European Union.
…’
11      Paragraph 5b of the FWBG states:
‘…
2.      “Buyer”: means any natural or legal person who is not a consumer, irrespective of that person’s place of establishment, or any public authority in the European Union, who buys agricultural and food products; the term ‘buyer’ may include a group of such natural and legal persons;
3.      “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 natural and legal persons belonging to this category, such as producer organisations, organisations of suppliers and associations of such organisations’.
12      Paragraph 5c(1) of the FWBG provides:
‘The trading practices referred to in Annex I shall be prohibited. …’
13      Paragraph 6(2) of the FWBG provides that:
‘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 of up to a maximum 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 Law on combating cartels and other restrictions of competition shall apply mutatis mutandis.’
14      Annex I to the FWBG is entitled ‘Trading practices prohibited in all circumstances’ and states, at point 4 thereof,
as follows:
‘The buyer requires payments from the supplier that are not related to the sale of the agricultural and food products of the supplier.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
15      M. GmbH, the defendant in the main proceedings, operates food retail stores in Austria.
16      In May 2023, M. GmbH sent requests for payment to its suppliers of agricultural and food products, which, under the BWB, were not related to the sale of those products and which therefore infringed Paragraph 5c(1) and point 4 of Annex I to the FWBG, which transpose point (d) of the first subparagraph of Article 3(1) of Directive 2019/633.
17      In order to justify those requests for payment, M. GmbH stated that it was significant economically affected by the repercussions of the COVID-19 pandemic on tourism, which resulted in a loss of customers in relation to food retail sales and also in massive cost increases. It therefore began a full restructuring of its business, including a purchasing transformation process. As part of that transformation process, it engaged an external consultant, who advised it to request a contribution from its suppliers in order to partly offset the high costs involved in that process.
18      On 16 May 2023, for that purpose, the company organised an online ‘Supplier Day’, during which it provided its suppliers with an overview of the current situation in the agricultural and food products market, the problems it was facing in that market as well as its losses at that time. It explained the transformation process which it was undergoing. The aims of that process were stated to be to professionalise Category Management and to optimise internal processes. M. GmbH also explained to its suppliers the investment requirements it was facing, in particular the need to acquire environmentally friendly hydrogen production units and to invest in a CO2-neutral heavy goods fleet.
19      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 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 which it was undertaking. Those emails were accompanied by pro forma invoices for different lump sums. The various emails were sent simultaneously. 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 on 16 May 2023, those emails were the same for all suppliers.
20      It is apparent from the order for reference that M. GmbH decided, on its own initiative, to terminate the investment requests made to the suppliers, to cancel the pro forma invoices attached to the emails and to reimburse the amounts already paid immediately. In total, only two of the 16 suppliers decided to act on the request for investment and to pay the amounts stated on the pro forma invoices attached to the emails sent.
21      The BWB found that M. GmbH, as a buyer, had requested from 16 suppliers a payment that was not related to the sale of agricultural and food products. In so doing, it found that each of those requests for payment infringed Paragraph 5c(1) of the FWBG, read in conjunction with point 4 of Annex I to the FWBG. On 10 November 2023, it therefore made 16 applications to the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), which is the referring court, seeking to have a fine imposed on M. GmbH, pursuant to Paragraph 6(2) of the FWBG.
22      Four of those applications were assigned to the 25th Chamber of that court. They were joined and concern the following four suppliers:
–        P. GmbH – request for payment in the amount of EUR 12 000;
–        L. GmbH – request for payment in the amount of EUR 10 000;
–        R. GmbH – request for payment in the amount of EUR 12 000;
–        S. GmbH – request for payment in the amount of EUR 18 000.
23      The BWB takes the view that each request for payment constitutes a separate infringement.
24      M. GmbH disputes those requests being separate, arguing that the sixteen requests made by the BWB are all based on the same factual situation. To make an artificial split into 16 separate requests therefore appears to M. GmbH to infringe the principle ne bis in idem. In the alternative, M. GmbH submits that, in reality, it is accused of a single and continuous infringement. That legal concept, which was developed by case-law and stems from the law applicable in the field of cartels and competition, appears to it also to apply to the provisions of the FWBG which transpose Directive 2019/633.
25      The referring court states that Paragraph 6(2) of the FWBG is a penalty of a criminal nature. The view in Austrian criminal law academic literature is that conduct such as the conduct of M. GmbH in question ought to be classified as a ‘single infringement’ in the sense that it constitutes a legal unity of action (tatbestandliche Handlungseinheit). That court states that, accordingly, even if the facts concerned commercial relationships with 16 suppliers, a single fine of a maximum amount of EUR 500 000, laid down in Paragraph 6(2) of the FWBG, ought to be imposed.
26      For that reason, the referring court expresses doubts as to whether that result makes it possible to achieve the objective stated in Directive 2019/633, namely a certain rebalancing of the bargaining power between buyers and suppliers in the agricultural and food supply chain. The referring court is of the view that such rebalancing can take place only at the level of the individual relationship between the buyer and the supplier. However, if the conduct of M. GmbH had to be classified as constituting a number of infringements leading to a number of fines being imposed in parallel, it would also be necessary to ask whether such a solution complied with that directive.
27      In those circumstances, the Oberlandesgericht Wien (Higher Regional Court, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice 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 offences 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?’
Consideration of the questions referred
The first question
28      By its first question, read as a whole, the referring court is, in essence, asking whether point (e) of the first subparagraph of Article 6(1) of Directive 2019/633 must be interpreted as precluding national legislation which provides that a number of requests for payment which are not related to the sale of agricultural and food products, within the meaning of Article 3(1)(d) of that directive, and which are addressed simultaneously by a buyer to a number of suppliers on the basis of a single intent, must be classified together as a single infringement giving rise to the imposition of a single fine, which is capped at a set amount.
29      As a preliminary point, it is apparent from recitals 1, 7 and 39 of Directive 2019/633 that that directive seeks to introduce at EU level a minimum standard of protection for suppliers of agricultural and food products against unfair trading practices by buyers in the agricultural and food supply chain, in order to reduce the frequency of such practices which are likely to have a negative impact on the living standards of the agricultural community. That impact is understood to be either direct, in so far as it concerns agricultural producers and their organisations as suppliers, or indirect, through a cascading of the consequences of the unfair trading practices occurring in the agricultural and food supply chain in a manner that negatively affects the primary producers in that chain.
30      From that point of view, the first subparagraph of Article 3(1) of that directive provides that Member States must ensure that at least all the unfair trading practices listed in that provision are prohibited. Those practices include, in Article 3(1)(d) of that directive, the practice whereby the buyer requires payments from the supplier that are not related to the sale of the agricultural and food products of the supplier.
31      In addition, as is apparent from Article 4 of Directive 2019/633, each Member State is to designate one or more authorities to enforce the prohibitions laid down in Article 3 of that directive at national level. The first subparagraph of Article 6(1) of that directive states that each of those authorities must have the necessary resources, expertise and powers to perform its duties.
32      The first question concerning the interpretation of point (e) of the first subparagraph of Article 6(1) of that directive must be answered by reference to those clarifications.
33      That provision states that Member States must confer on those 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. The second subparagraph of Article 6(1) also states that those penalties must be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.
34      It is therefore necessary, as the Advocate General suggests in point 26 of his Opinion, to address in turn the two aspects of the issue raised by the referring court, relating (i) to the classification together of a number of unfair trading practices as a single infringement, resulting in a single fine being imposed in respect of all of those practices and (ii) to the capping of that fine.
35      In accordance with settled case-law, it is necessary, when interpreting a provision of EU law, to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 8 May 2025, Pielatak, C‑410/23, EU:C:2025:325, paragraph 54 and the case-law cited).
36      As regards, in the first place, whether national legislation – which provides that a number of identical unfair trading practices prohibited under Article 3(1)(d) of Directive 2019/633 and implemented by the same buyer simultaneously must be classified together as a ‘single infringement’ which can give rise only to the imposition of a single fine – is compatible with point (e) of the first subparagraph of Article 6(1) of that directive, it must, first of all, be observed that the wording of point (e) of the first subparagraph of that Article 6(1) simply refers to national rules and procedures in a general manner, without giving specific indications as to whether it is possible to classify a number of prohibited practices as a single infringement. Therefore, in principle, that provision leaves the Member States free to choose, or not to choose, to make such a classification, in so far as, in accordance with the second subparagraph of Article 6(1), the penalty imposed in that respect is effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.
37      As regards, next, the context in which that provision occurs, it should be stated that it is apparent from recitals 1 and 39 of Directive 2019/633 that the EU legislature chose an approach based on minimum harmonisation of the rules relating to unfair trading practices in business-to-business relationships within the agricultural and food supply chain.
38      That minimum harmonisation logic is apparent in numerous references in the text of that directive to the law of the Member States, which are responsible for clarifying the implementation or scope of certain rules laid down by that directive. Recital 24 of that directive indicates, for example, that that directive does not harmonise the rules on the burden of proof to be applied in proceedings before the national enforcement authorities, nor does it harmonise the definition of supply agreements. Similarly, point (c) of the first subparagraph of Article 6(1) of that directive states that those authorities must have the power to carry out unannounced on-site inspections within the framework of their investigations, in accordance with national rules and procedures.
39      In addition, Directive 2019/633 expressly leaves Member States free to supplement the system for protecting suppliers of agricultural and food products via more protective national rules. To that effect, Article 9 of that directive provides that, with a view to ensuring a higher level of protection, Member States may maintain or introduce stricter rules aimed at combating unfair trading practices than those laid down by that directive, provided that such national rules are compatible with the rules on the functioning of the internal market.
40      It follows that, where Directive 2019/633 is silent, the minimum harmonisation logic means that the rules relating to the cumulation of penalties or the detailed rules for classifying multiple unfair trading practices fall, in principle, within the discretion of the Member States, in respect of which Directive 2019/633 neither requires nor prohibits such rules.
41      Finally, the interpretation set out in paragraphs 36 to 40 of the present judgment is borne out by the objectives pursued by the directive at issue. Indeed, it is not possible to take the view that Directive 2019/633 focuses on protecting each supplier of agricultural and food products in its particular relationship with a buyer, which would preclude classifying a number of infringements involving various suppliers as a single infringement or any cumulation of penalties incurred for such infringements. As the Advocate General observed in point 37 of his Opinion, the objective pursued by that directive, namely the protection of the living standards of the agricultural community, goes beyond the mere protection of individual relations between buyers and suppliers. From that point of view, the possibility of classifying a number of unlawful practices together does not, in principle, jeopardise the effectiveness of those practices being prohibited and does not undermine that objective of that directive.
42      Furthermore, in order to provide the referring court with a useful and comprehensive answer, it should be added, first, that the concept of a ‘single and continuous infringement’, as set out in the Court’s case-law on Article 101 TFEU, is not relevant in the context of Directive 2019/633. In that regard, it must be noted that the legal basis of that directive, namely Article 43(2) TFEU, seeks to pursue the common agricultural policy, in accordance with Article 39(1) TFEU. The provisions of that Treaty relating to the rules on competition are therefore not relevant. That means that the concept of a ‘single and continuous infringement’, developed in the context of competition law, is governed by a logic different from that applied in the context of Directive 2019/633.
43      In any event, in accordance with the case-law of the Court relating to Article 101 TFEU, an infringement of Article 101(1) TFEU may result not only from an isolated act but also from a series of acts or from continuous conduct. When the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the European Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 258). Accordingly, the concept of a ‘single and continuous infringement’ is used in the rules on the taking of evidence in competition matters and, more specifically, in order to make it easier to attribute certain conduct to undertakings. That concept is therefore irrelevant where the law enforcement authorities may, with a view to applying a more lenient penalty, classify together a number of instances of conduct falling within the same logic and conclude that they constitute a single infringement.
44      Second, as the Advocate General correctly pointed out, in points 35 and 36 of his Opinion, the principle ne bis in idem cannot be relied on to require Member States to refrain from adopting rules allowing a number of unfair trading practices taken together to be classified as a single infringement.
45      In that respect, it follows from the settled case-law of the Court regarding Article 50 of the Charter of Fundamental Rights of the European Union 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 (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). While 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 (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). 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 (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).
46      Where a set of unfair trading practices directed at different suppliers is classified as a single infringement, the idem condition is in principle not satisfied.
47      The fact that the practices at issue in the main proceedings may be classified as a ‘single infringement’ under national law changes nothing in that regard. Indeed, the Court has already held that the legal classification, under national law, of the facts is not relevant for the purposes of establishing the existence of the same infringement, in so far as the scope of the protection conferred by Article 50 of the Charter of Fundamental Rights 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).
48      It follows from the foregoing that point (e) of the first subparagraph of Article 6(1) of Directive 2019/633 must be interpreted as not precluding, in principle, national legislation which provides that a number of unfair trading practices prohibited under Article 3(1) of that directive are to be classified together as a single infringement which may give rise to a single fine.
49      In the second place, it is necessary to establish whether Article 6(1) of Directive 2019/633 must be interpreted as nevertheless precluding such national legislation where it provides for a cap on the fine laid down in order to penalise that set of practices classified jointly as a single infringement.
50      In that respect, the second subparagraph of Article 6(1) of that directive provides that the penalties referred to in point (e) of the first subparagraph of that
Article 6(1) must be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.
51      As regards, in particular, the principle of proportionality, the Court has stated that that principle requires that the individual circumstances of the particular case are taken into account in determining the penalty and setting the amount of the fine (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, paragraph 67 and the case-law cited). Similarly, the measures imposing penalties must not go beyond what is necessary in order to attain the objectives pursued by the legislation concerned (see, to that effect, judgment of 23 November 2023, J.P. Mali, C‑653/22, EU:C:2023:912, paragraph 32 and the case-law cited). Proportionality is therefore assessed specifically in the light of the objectives of the penalty measure concerned.
52      That requirement, like those laid down in the second subparagraph of Article 6(1) of that directive, presupposes that the national enforcement authority, or the national court responsible for imposing penalties in respect of the prohibitions arising from Article 3 of that directive has the discretion necessary to set a penalty which complies with all of those requirements available to it.
53      Where a number of unfair trading practices prohibited under Article 3 of Directive 2019/633 are classified together as a single infringement such that they can give rise only to a single capped fine being imposed, it is possible that the enforcement authority or the court responsible for determining the amount of that fine may, in certain cases, be deprived of the discretion necessary to comply with those requirements.
54      That is likely to be the case, in particular, where the maximum amount of the fine set by the national legislation is much lower than the likely financial gain envisaged by the buyer when imposing on many of its suppliers payments not related to the sale of the agricultural and food products of those suppliers. Indeed, where the cumulative total of those payments significantly exceeds the fine cap, the single maximum penalty for those unlawful practices taken together is not likely to be sufficient to ensure the desired deterrence or to be effective and consistent with the principle of proportionality.
55      It is therefore for the referring court to ascertain whether, in the case in the main proceedings, it has the discretion necessary to set the amount of the fine in a manner consistent with the requirements laid down in the second subparagraph of Article 6(1) of Directive 2019/633. In so doing, it should take account, in particular, of the amount of the financial gain which the buyer envisaged when imposing on many of its suppliers payments not related to the sale of their agricultural and food products as compared with the cap set for the fine penalising those unlawful payments as a whole.
56      In the light of the foregoing, the answer to the first question is that point (e) of the first subparagraph of Article 6(1) of Directive 2019/633, read in conjunction with the second subparagraph of Article 6(1) of that directive, must be interpreted as not precluding national legislation which provides that a number of requests for payment that are not related to the sale of agricultural and food products within the meaning of Article 3(1)(d) of that directive, and which are addressed simultaneously by a buyer to a number of suppliers on the basis of a single intent must be classified together as a single infringement giving rise to the imposition of a single fine, which is capped at a set amount, provided that the national enforcement authority or the national court responsible for penalising that infringement has the discretion necessary to set a fine which is effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of that infringement.
The second question
57      In view of the answer given to the first question referred for a preliminary ruling, there is no need to answer the referring court’s second question.
Costs
58      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Point (e) of the first subparagraph of Article 6(1) 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, read in conjunction with the second subparagraph of Article 6(1) of that directive,
must be interpreted as meaning that it does not preclude national legislation which provides that a number of requests for payment that are not related to the sale of agricultural and food products within the meaning of Article 3(1)(d) of that directive, and which are addressed simultaneously by a buyer to a number of suppliers on the basis of a single intent must be classified together as a single infringement giving rise to the imposition of a single fine, which is capped at a set amount, provided that the national enforcement authority or the national court responsible for penalising that infringement has the discretion necessary to set a fine which is effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.
[Signatures]
*      Language of the case: German.