Commission Delegated Regulation (EU) 2022/1209 of 5 May 2022 supplementing Regulation (EU) 2018/858 of the European Parliament and of the Council as regards the procedure for the imposition of administrative fines and the methods for their calculation and collection (Text with EEA relevance)
Procedure
1. Before imposing an administrative fine pursuant to Article 85(1) in conjunction with Article 53 of Regulation (EU) 2018/858 upon an economic operator, the Commission shall notify the economic operator and the Member States concerned in writing of its intention to impose an administrative fine, and state the reasons for intending to do so.
2. The economic operator and the Member States concerned shall be given a period of no less than 30 days following the notification pursuant to paragraph 1 to provide their observations to the Commission in writing. Without prejudice to paragraph 4, written observations received after the expiry of that period shall not be taken into account.
3. The economic operator and the Member States concerned may, in their written observations to the Commission, attach any evidence to support their observations.
4. Following the written observations by the economic operator and the Member States concerned, the Commission may by reasoned request require further information within a time limit to be set out in the request of no less than 15 days.
5. In exceptional cases, where the Commission requires further information, it may invite the economic operator and the Member States concerned to express their position orally in a meeting after the completion of the written part of procedure under paragraphs 1 to 4.
Confidentiality
1. Economic operators who submit information in accordance with Article 1 shall identify any information submitted by them which they consider to be confidential, giving reasons, and, where necessary, provide a separate non-confidential version of the document containing that information by the date set by the Commission.
2. Where the economic operator has not identified any information as confidential, the Commission may assume that the information submitted does not contain confidential information.
3. Nothing in this Article shall prevent the Commission from using the information submitted to prove non-compliance.
Method for calculating administrative fines
1. For the purpose of calculating the amount of administrative fines the Commission shall estimate the following amounts:
(a)
the economic advantage or other advantage obtained by the economic operator as a result of the non-compliance;
(b)
where possible, the losses to consumers as a result of the non-compliance.
The advantages and losses thus assessed shall form the basis for the calculation of administrative fines. Where an advantage for the economic operator also constitutes a loss to consumers, it shall only be taken into account once.
On the basis of the amounts referred to in points (a) and (b), the administrative fines shall be calculated having regard to the number of non-compliant vehicles registered in the Union market or the number of relevant non-compliant systems, components or separate technical units made available on the Union market.
2. When calculating the amount of administrative fines, the Commission shall take into account any aggravating or mitigating factors and other factors.
3. The aggravating factors referred to in paragraph 2 shall include the following elements:
(a)
the impact on the health and safety of persons or the negative impact on the environment due to the lowering of performance requirements of a vehicle;
(b)
the degree of negligence or intent of the economic operator including any attempt by the economic operator to hide or conceal relevant information for the establishment of non-compliance;
(c)
any unjustified refusal by the economic operator to provide information or evidence requested by the Commission.
4. The mitigating factors referred to in paragraph 2 shall include the following elements:
(a)
the efforts and cooperation of the economic operator in the detection of non-compliance;
(b)
any self-initiated corrective actions taken by the economic operator including their promptness;
(c)
any other reasonable and relevant mitigating factor demonstrated with appropriate evidence by the economic operator.
5. The other factors referred to in paragraph 2 shall include the repetition, the frequency or the duration of the non-compliance, and other sanctions imposed at Union or national level for non-compliance with EU type-approval rules during the 10 years preceding the establishment of the non-compliance.
6. The final administrative fine expressed in EUR shall be set at a level that ensures its effectiveness, proportionality and dissuasiveness.
Methods for collecting administrative fines
The administrative fines must be paid within 3 months from the date on which the debtor has been notified of the Commission decision, counting from the date of receipt of the notification letter. These fines are collected in accordance with Articles 107 and 108 of Regulation (EU, Euratom) 2018/1046. Additional time for payment can be granted in accordance with Article 104 of that Regulation.
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
