Penalties
1. Where it deems it to be necessary and proportionate, the Commission may, by way of implementing acts, impose on the economic operators that are addressees of information requests pursuant to Article 62 or that are subject to any of the obligations to inform the Commission of a third-country obligation pursuant to Article 63(17) and Article 66(13) or to prioritise the production of crisis-relevant products pursuant to Articles 63 and 66, the following fines or penalties:
(a)
fines not exceeding EUR 300 000 where the economic operator, intentionally or through gross negligence, supplies incorrect, incomplete or misleading information in response to a request made pursuant to Article 62(1), or does not supply the information within the prescribed time limit in accordance with Article 62(9);
(b)
fines not exceeding EUR 150 000 where the economic operator, intentionally or through gross negligence, does not comply with the obligation to inform the Commission of a third-country obligation pursuant to Article 63(17) and Article 66(13);
(c)
periodic penalty payments not exceeding 1,5 % of the average daily turnover in the preceding business year for each working day of non-compliance from the date established in the decision in which the priority-rated order was issued, where the economic operator, intentionally or through gross negligence, does not comply with an obligation to prioritise the production of crisis-relevant products pursuant to Article 63(9), in accordance with Article 63(18), and, where the economic operator on whom a periodic penalty payment is imposed under this point is an SME, not exceeding 0,5 % of its average daily turnover in the preceding business year;
(d)
fines not exceeding EUR 300 000 where the economic operator, intentionally or through gross negligence, does not comply with the obligation to prioritise the production of crisis-relevant products pursuant to Article 63(8) and Article 66(6), in accordance with Article 63(18) and Article 66(12), respectively.
The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 77(4).
2. Before taking a decision pursuant to paragraph 1 of this Article, the Commission shall provide an opportunity for the economic operator concerned to be heard in accordance with Article 75. The Commission shall take into account any duly reasoned justification presented by the economic operator for the purpose of determining whether fines or periodic penalty payments are deemed necessary and proportionate.
3. In fixing the amount of the fine or periodic penalty payment, the Commission shall take into consideration the nature, gravity and duration of the infringement, including, in relation to cases of non-compliance with the obligation to accept or prioritise a priority-rated order set out in Article 63(9) or a priority-rated request set out in Article 63(7) or Article 66(6), whether the economic operator has partially complied with the priority-rated order or the priority-rated request.
4. The fines shall constitute external assigned revenue within the meaning of Article 21(5) of the Financial Regulation and shall be directed to the Ukraine Support Instrument.
Limitation period for the imposition of penalties
1. The powers conferred on the Commission by Article 72 shall be subject to the following limitation periods:
(a)
two years in the case of infringements of provisions concerning requests for information pursuant to Article 62(1);
(b)
two years in the case of infringements of provisions concerning information obligations pursuant to Article 63(17) and Article 66(13);
(c)
three years in the case of infringements of provisions concerning the obligation related to the prioritisation of the production of crisis-relevant products pursuant to Articles 63 and 66.
2. The limitation periods referred to in paragraph 1 shall begin to run on the day on which the infringement is committed. Where there are continuous or repeated infringements, the limitation periods shall begin to run on the day on which the last infringement was committed.
3. Any action taken by the Commission or the competent authorities of the Member States for the purpose of ensuring compliance with this Regulation shall interrupt the limitation period.
4. The interruption of the limitation period shall apply for all the parties which are held responsible for participation in the infringement.
5. Each interruption of the limitation period shall start that limitation period running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which the limitation period is suspended because the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.
Limitation period for the enforcement of penalties
1. The power of the Commission to enforce decisions taken pursuant to Article 72 shall be subject to a limitation period of three years.
2. The limitation period shall begin to run on the day on which the decision becomes final.
3. The limitation period for the enforcement of fines and periodic penalty payments shall be interrupted by:
(a)
a notification of a decision varying the original amount of the fine or periodic penalty payment or refusing an application for variation;
(b)
any action of the Commission or of a Member State, acting at the request of the Commission, designed to enforce payment of the fine or periodic penalty payment.
4. Each interruption as referred to in paragraph 3 shall start the limitation period running afresh.
5. The limitation period for the enforcement of fines and periodic penalty payments shall be suspended for as long as:
(a)
time to pay is allowed;
(b)
enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Union.
Right to be heard for the imposition of fines or periodic penalty payments
1. Before adopting a decision pursuant to Article 72, the Commission shall ensure that the economic operators concerned have been given the opportunity to submit observations on:
(a)
the preliminary findings of the Commission, including any matter in relation to which the Commission has raised objections;
(b)
the measures that the Commission may intend to take in view of the preliminary findings pursuant to point (a) of this paragraph.
2. The economic operators concerned may submit to the Commission their observations on the Commission’s preliminary findings within a time limit which shall be fixed by the Commission in its preliminary findings, and which may not be less than 14 working days.
3. The Commission shall base its imposition of fines or periodic penalty payments only on objections on which the economic operators concerned have been able to comment.
4. Where the Commission has informed the economic operators concerned of its preliminary findings as referred to in paragraph 1, it shall give access, if so requested, to the Commission’s file under the terms of a negotiated disclosure, subject to the legitimate interest of economic operators in the protection of their business secrets, or in order to preserve business secrets or other confidential information of any person. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the authorities of the Member States, in particular to correspondence between the Commission and the authorities of the Member States. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.
