We are currently consulting on this draft guidance.
- At Step 3, the Commissioner will calculate the starting point of the fine based on the outcomes of Step 1 and Step 2 as follows:
• Where the statutory maximum is a fixed amount:
statutory maximum amount (fixed) x adjustment for seriousness x turnover adjustment
• Where the statutory maximum is turnover based:
turnover x statutory maximum amount (percentage) x adjustment for seriousness
- Table C and Table D below set out the ranges of starting point for fines up to the standard maximum amount and the higher maximum amount respectively.
Table C: Indicative ranges for fine starting points for standard maximum amount based on Step 1 and Step 2
| Annual turnover | Lower degree of seriousness | Medium degree of seriousness | Most serious |
| £0 to £2 million (micro-enterprise) | Adjustment of between 0.2% and 0.4% of annual turnover | ||
| £0 to £3,480 | £1,740 to £6,960 | £3,480 to £34,800 | |
| £2 million to £10 million (small-enterprise) | Adjustment of between 0.4% and 2% of annual turnover | ||
| 0 to £17,400 | £3,480 to £34,800 | £6,960 to £174,000 | |
| £10 million to £50 million (medium-enterprise) | Adjustment of between 2% and 10% of annual turnover | ||
| £0 to £87,000 | £17,400 to £174,000 | £34,800 to £870,000 | |
| £50 million to £100 million | Adjustment of between 10% and 20% of annual turnover | ||
| £0 to £174,000 | £87,000 to £348,000 | £174,000 to £1.74 million | |
| £100 million to £250 million | Adjustment of between 20% and 50% of annual turnover | ||
| £0 to £435,000 | £174,000 to £870,000 | £348,000 to £4.35 million | |
| £250 million to £435 million | Adjustment of between 50% and 100% of annual turnover | ||
| £0 to £870,000 | £435,000 to £1.74 million | £870,000 to £8.7 million | |
| Above £435 million | No adjustment to the starting amount based on annual turnover 91 | ||
Table D: Indicative ranges for fine starting points for higher maximum amount based on Step 1 and Step 2
| Annual turnover | Lower degree of seriousness | Medium degree of seriousness | Most serious |
| £0 to £2 million (micro-enterprise) | Adjustment of between 0.2% and 0.4% of annual turnover | ||
| £0 to £7,000 | £3,500 to £14,000 | £7,000 to £70,000 | |
| £2 million to £10 million (small-enterprise) | Adjustment of between 0.4% and 2% of annual turnover | ||
| 0 to £35,000 | £7,000 to £70,000 | £14,000 to £350,000 | |
| £10 million to £50 million (medium-enterprise) | Adjustment of between 2% and 10% of annual turnover | ||
| £0 to £175,000 | £35,000 to £350,000 | £70,000 to £1.75 million | |
| £50 million to £100 million | Adjustment of between 10% and 20% of annual turnover | ||
| £0 to £350,000 | £175,000 to £700,000 | £350,000 to £3,500,000 | |
| £100 million to £250 million | Adjustment of between 20% and 50% of annual turnover | ||
| £0 to £875,000 | £350,000 to £1.75 million | £700,000 to £8.75 million | |
| £250 million to £435 million | Adjustment of between 50% and 100% of annual turnover | ||
| £0 to £1,750,000 | £875,000 to £3.5 million | £1.75 million to £17.5 million | |
| Above £435 million | No adjustment to the starting amount based on annual turnover 92 | ||
- As explained above, these ranges based on annual turnover are indicative. The Commissioner will reach a decision on a case-by-case basis as to whether it is appropriate to adjust the starting amount of the fine in this way. In doing so, the Commissioner will have regard to the need for the fine in each individual case to be effective, proportionate and dissuasive.
- To illustrate how the starting point would be calculated in practice, this guidance sets out two examples below. The first example covers an infringement with a medium degree of seriousness committed by a small enterprise. The second example covers a most serious infringement committed by a large undertaking with more than £437.5 million turnover.
Example A
- Step 1: An undertaking commits an infringement with a medium degree of seriousness. The Commissioner considers that the infringement warrants a starting point of 16% of the relevant legal maximum. The relevant legal maximum for the infringement in this case is the higher maximum amount (£17.5 million or 4%). Therefore, without any further adjustment, a fine based on the starting point at Step 1 would be either £2.8 million 93 (if the fixed amount applies) or 0.64% of turnover 94 (if the turnover based amount applies).
- Step 2: The undertaking’s turnover is £30 million. The Commissioner may therefore make an adjustment at Step 2 to reflect the size of the undertaking. As set out in Table B, the range for adjustment based on turnover for a medium enterprise with turnover between £10 million and £50 million is between 2% and 10%. Taking into account the circumstances of the case, the Commissioner decides that an appropriate adjustment is 5%.
- Step 3: Applying the seriousness starting point at Step 1 of 16% and making an adjustment at Step 2 of 5% leads to a fine amount at the end of Step 3 of £140,000.
Statutory maximum amount (fixed) x Adjustment for seriousness x Turnover adjustment
£17.5 million x 16% x 5%
Starting point = £140,000
Example B
- Step 1: An undertaking commits a most serious infringement. The Commissioner considers that the infringement warrants a starting point of 40% of the relevant legal maximum. The relevant legal maximum for the infringement in this case is the higher maximum amount. Therefore, without any further adjustment, a fine based on the starting point at Step 1 would be either £7 million 95 (if the fixed amount applies) or 1.6% of turnover 96 (if the turnover-based amount applies).
- Step 2: The undertaking’s turnover is £800 million. The Commissioner may therefore decide not to make an adjustment at Step 2 as the undertaking’s size is already reflected in the fine calculation. This is because the turnover-based percentage figure of 4% for the higher maximum amount applies (the undertaking’s turnover is above £437.5 million).
- Step 3: Applying the higher maximum amount turnover-based percentage (4%) and the seriousness starting point at Step 1 of 40% to the undertaking’s turnover identified at Step 2 of £800 million leads to a fine at the end of Step 3 of £12.8 million.
Turnover x Statutory maximum amount (percentage) x Adjustment for seriousness
£800 million x 4% x 40%
Starting point = £12.8 million
91 Above £435 million (for the standard maximum amount) the undertaking’s size is already reflected by the use of a percentage figure to calculate the statutory maximum and the Commissioner will consider whether it is appropriate to impose a penalty up to the amount allowed by law.
92 Above £437.5 million (for the higher maximum amount) the undertaking’s size is already reflected by the use of a percentage figure to calculate the statutory maximum and the Commissioner will consider whether it is appropriate to impose a penalty up to the amount allowed by law.
93 £17.5 million x 16% = £2.8 million.
95 £17.5 million x 40% = £7 million.