Fines under the BFSG

Section 37 (1) BFSG lists ten offences. A regulatory offence is committed by anyone who realises one of them intentionally or negligently. Most of them concern products: placing non-accessible products on the market, missing or incorrect markings, missing instructions and safety information, failing to provide information to the authority, and breaches around CE marking.

For online offerings, number 8 is the one that matters: offering or providing a service that does not meet the accessibility requirements, contrary to Section 14 (1) in conjunction with the ordinance under Section 3 (2).

The amounts are in Section 37 (2). In the cases of subsection 1 nos. 1, 7, 8, 9 and 10, the offence may be punished with a fine of up to one hundred thousand euros, and in the remaining cases with a fine of up to ten thousand euros. Because offering a non-accessible service falls under number 8, the higher range applies to it.

The statute names no other amounts. The figure of five hundred thousand euros often quoted online appears neither in the BFSG nor in the BFSGV.

The amounts named are maximums, not standard figures. What a fine actually comes to follows the German Act on Regulatory Offences (OWiG).

Under Section 17 (1) OWiG a fine is at least five euros. Under Section 17 (2) OWiG, where a statute provides the same fine for intentional and negligent conduct without distinguishing the maximum, negligent conduct may be punished with only half of the stated maximum. That is the case for Section 37 BFSG. For negligent breaches of number 8 the ceiling is therefore fifty thousand euros.

Under Section 17 (3) OWiG, assessment rests on the significance of the offence and the degree of blame, and the economic circumstances of the person concerned may also be taken into account.

Section 17 (4) OWiG contains a rule that qualifies the nominal ceiling: the fine should exceed the economic benefit the offender gained from the offence, and where the statutory maximum does not suffice for that, it may be exceeded.

A fine may be imposed on the company itself under Section 30 OWiG where a person in a leading position committed the offence and thereby breached duties incumbent on the company, or where the company was enriched. For regulatory offences, Section 30 (2) sentence 2 OWiG keeps the maximum at the amount stated for the offence, so here at the amounts in Section 37 (2) BFSG.

The BFSG relies less on money than on a staged procedure. Section 29 BFSG sets it out for services that fail the accessibility requirements.

First the market surveillance authority requires the service provider, without delay, to take suitable measures within a reasonable period. If nothing follows, it repeats the demand, this time with notice that offering or providing the service may be prohibited. If suitable corrective measures still do not follow, the authority takes the measures necessary to end the non-compliance.

Section 30 BFSG sets out the same escalation for formal non-compliance, meaning cases where the information required by Annex 3 is missing or has not been made accessible.

For a live business, a prohibition on providing the service is usually far more severe than a fine at the top of the range.

Under Section 32 BFSG, the market surveillance authority must open a procedure against an economic operator on application by a consumer who asserts that the operator is breaching the Act or the ordinance under Section 3 (2), and that the consumer therefore cannot use the product or service, or can use it only in a limited way.

Under Section 33 BFSG, associations recognised under Section 15 (3) BGG and bodies under the Injunctions Act may bring legal remedies, in the name of affected consumers or in their place, and under the conditions set out there also without being infringed in their own rights.

A penalty procedure therefore does not necessarily start with a routine inspection. It can also be set in motion by an application from affected users or by an association.

Federal public bodies face no fine. Neither the BITV 2.0 nor the Disability Equality Act contains a penalty provision.

Other mechanisms take its place: periodic monitoring by the Federal Monitoring Body for Accessibility of Information Technology under Section 13 (3) BGG, the feedback mechanism under Section 12b (2) no. 2 BGG, the conciliation procedure at the conciliation body under Section 16 BGG, and administrative court proceedings, which recognised associations may also bring under Section 14 BGG.

Public bodies of the federal states and municipalities are governed by the respective state law. This fact page makes no statement about that.

For how the requirements of the BFSG are met in practice, see the topic page on the BFSG. Related fact pages: the fact page on the BFSG, the fact page on the BITV 2.0 and the fact page on the WCAG. All fact pages are listed on the facts overview.

A fine of this kind is not a criminal penalty. Breaches of Section 37 BFSG are regulatory offences, not crimes. No prison sentence and no criminal record entry follow from them.

The amounts in Section 37 (2) BFSG are maximums, not standard rates, and not an automatic consequence of a breach. The procedure under Section 29 BFSG, with a demand, a deadline and a formal notice, comes first.

The figure of five hundred thousand euros that circulates widely does not appear in the BFSG. The highest amount named there is one hundred thousand euros.

A fine under the BFSG does not threaten every website. The Act covers only the services listed exhaustively in Section 1 (3), which for online offerings means above all electronic commerce services, consumer banking services and passenger transport services. Micro-enterprises providing services are exempt under Section 3 (3) sentence 1 BFSG.