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1. The Commission may, in exceptional situations, after consulting the Member States in which the economic operators are established, and taking utmost account of their views, address a request to one or more economic operators established in the Union to accept and prioritise the production or supply of crisis-relevant goods (‘priority-rated requests’) where:

(a) there is a severe and persistent shortage of the crisis-relevant goods subject to the request; and (b) the production or supply of such goods could not be achieved by other measures provided for in this Regulation, including those referred to in Article 35 or in Title V.

2. The Commission shall demonstrate that the choice of the recipients and beneficiaries of the priority-rated requests referred to in this Article is non-discriminatory and complies with Union competition rules.

3. The Commission shall base the priority-rated requests referred to in this Article on objective, factual, measurable and substantiated data, showing that such prioritisation is indispensable in order to ensure the maintenance of vital societal functions or economic activities in the internal market, as well as having regard to the legitimate interests of the economic operator and the cost and effort required for any change in the production sequence of the supply chain. The Commission shall explicitly indicate in the priority-rated request that the economic operator remains free to refuse that request.

4. Where the economic operator to which the priority-rated request referred to in paragraph 1 is addressed has expressly accepted that request, the Commission shall adopt an implementing act providing for:

(a) the legal basis of the priority-rated request which has to be complied with by the economic operator;

(b) the goods subject to the priority-rated request and the quantity in which they are to be supplied;

(c) the time limits within which the priority-rated request is to be completed;

(d) the beneficiaries of the priority-rated request; and (e) the waiver of contractual liability under the conditions laid down in paragraph 6.

5. The priority-rated request made pursuant to paragraph 4 shall be placed at a fair and reasonable price adequately taking into account the economic operator’s opportunity costs when fulfilling the priority-rated request as compared to existing performance obligations. That priority-rated request shall take precedence over any prior performance obligation, under private or public law, related to the goods subject to the priority-rated request.

6. The economic operator subject to a priority-rated request pursuant to paragraph 4 shall not be liable for any breach of contractual obligation that is governed by the law of a Member State, provided that:

(a) the breach of contractual obligation is necessary for compliance with the required prioritisation;

(b) the implementing act referred to in paragraph 4 has been complied with; and (c) the acceptance of the priority-rated request did not have the sole purpose of unduly avoiding a prior contractual obligation.

7. The priority-rated requests shall not include goods the production or supply of which would be contrary to the essential interests of Member States’ national security or defence.

8. The Commission shall adopt the implementing act referred to in paragraph 4 in accordance with applicable Union law, including the principles of necessity and proportionality, and the Union’s obligations under international law.

9. The implementing act referred to in paragraph 4 of this Article shall be adopted in accordance with the examination procedure referred to in Article 45(2).

10. Where an economic operator, after having expressly accepted a priority-rated request, does not comply, either intentionally or through gross negligence, with that request, the Commission may, by means of a decision, where deemed necessary and proportionate, impose a fine on the economic operator concerned. That fine shall not exceed 100 000 EUR. Fines imposed on SMEs shall not exceed 25 000 EUR.