(1) When determining an appropriate contractual penalty as per section 13 (1), consideration is to be given to the following:
1. the nature, extent and consequences of the infringement,
2. the culpability of the infringement and, in the case of culpable infringement, the severity of the guilt,
3. the size, market strength and competitiveness of the entity issued with a written warning notice, and
4. the economic interest of the entity issued with a written warning notice in past and future infringements.
(2) The agreement of a contractual penalty in accordance with subsection (1) is ruled out for claimants pursuant to section 8 (3) no. 1 in the case of a first written warning notice in the case of infringements under section 13 (4) if the entity issued with the written warning notice generally employs fewer than 100 members of staff.
(3) Contractual penalties may not exceed 1,000 euros if, in the light of the nature, extent and consequences of the infringement, the infringement interferes with the interests of consumers, competitors and other market participants to only an insignificant degree and if the entity issued with the written warning notice generally employs fewer than 100 members of staff.
(4) If the entity issued with the written warning notice, upon the request of the entity issuing the written warning notice, promises to pay an appropriate contractual penalty, then it is liable only to pay an appropriate contractual penalty.
(5) Where agreement has only been reached on payment of a contractual penalty but it has not yet been quantified, the entity issued with the written warning notice may, in the case of disagreement as to the amount of the penalty, apply to a conciliation board pursuant to section 15 even without the consent of the entity issuing the written warning notice. The same applies where the entity issued with the written warning notice in accordance with subsection (4) is only liable to pay an appropriate contractual penalty. Where proceedings are pending before a conciliation board, an action filed after application has been made to the conciliation board is not admissible.