VIENNA, February 23, 2026 — The European Court of Justice (ECJ) has issued a preliminary ruling in an Austrian reference concerning sanctions under the Fair Competition Conditions Act (FWBG), leading to the reinstatement of proceedings against an Austrian food retailer.
In November 2023, the Federal Competition Authority (BWB) applied to the Cartel Court in 16 cases for the imposition of appropriate fines against a food retailer for alleged infringements of the FWBG. The proceedings concern payment demands made by the retailer to suppliers of agricultural and food products. The retailer sent so-called pro forma invoices requesting lump-sum payments of varying amounts, which were not related to the products actually supplied.
The Cartel Court considered that, under Austrian law, the simultaneous sending of payment requests to different suppliers based on a single decision could be treated as a single offence (Tateinheit). This would result in only one fine of up to EUR 500,000. Questioning whether such an outcome would comply with the objectives of the Unfair Trading Practices (UTP) Directive, which forms the basis of the FWBG, the Cartel Court stayed the proceedings on 26 April 2024 and referred the matter to the ECJ for a preliminary ruling.
In its judgment of 29 January 2026 (Case C-311/24), the ECJ stated that the UTP Directive refers generally to national rules and procedures regarding the power to impose sanctions or initiate proceedings, without specifying whether multiple prohibited practices may be treated as a single infringement. The Court underlined that the Directive is based on minimum harmonisation and that, in the absence of specific provisions, rules on overall penalties or the classification of several unfair trading practices fall within the discretion of the Member States.
However, the ECJ emphasised that sanctions must comply with the principle of proportionality. Both the determination and the level of sanctions must take account of the circumstances of the individual case. National enforcement authorities and courts must have sufficient discretion to impose sanctions that meet the Directive’s requirements. If the concept of a single offence allows only one fine that is capped at a relatively low level, it is possible that such discretion may be lacking, particularly where the maximum fine is significantly lower than the potential gain from the unfair practice. The referring court must assess whether it has the necessary discretion.
The ECJ did not provide a final determination on whether the FWBG’s fining regime complies with the Directive but indicated that there may be situations in which the existing rules are insufficient. Sanctions must be proportionate, deterrent and effective.
Following the ECJ’s ruling, the suspension of two complexes of proceedings has come to an end. The BWB has announced that it will apply for the continuation of the cases before the Cartel Court.
The FWBG, which entered into force on 1 January 2022, aims, inter alia, to protect suppliers of agricultural and food products against economically stronger buyers. The Act prohibits unfair trading practices such as unilateral contract changes, demands for payments unrelated to the sale of products, unlawful use of trade secrets, threats of retaliation and discrimination. Fines of up to EUR 500,000 may be imposed by the Cartel Court for infringements. The BWB is responsible for enforcing the Act.
