Article 81 GDPR

← Article 81 - Suspension of proceedings →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 81 - Suspension of proceedings

1. Where a competent court of a Member State has information on proceedings, concerning the same subject matter as regards processing by the same controller or processor, that are pending in a court in another Member State, it shall contact that court in the other Member State to confirm the existence of such proceedings.

2. Where proceedings concerning the same subject matter as regards processing of the same controller or processor are pending in a court in another Member State, any competent court other than the court first seized may suspend its proceedings.

3. Where those proceedings are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

Relevant Recitals

Recital 144: Lis Alibi Pendens

Where a court seized of proceedings against a decision by a supervisory authority has reason to believe that proceedings concerning the same processing, such as the same subject matter as regards processing by the same controller or processor, or the same cause of action, are brought before a competent court in another Member State, it should contact that court in order to confirm the existence of such related proceedings. If related proceedings are pending before a court in another Member State, any court other than the court first seized may stay its proceedings or may, on request of one of the parties, decline jurisdiction in favour of the court first seized if that court has jurisdiction over the proceedings in question and its law permits the consolidation of such related proceedings. Proceedings are deemed to be related where they are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Commentary

Article 81 GDPR regulates the suspension of judicial proceedings in multiple Member States in the context of data protection. The Article addresses issues of coordination where parallel proceedings are brought in the courts of different Member States. The lis pendens rules under Article 81 GDPR differ slightly from those under the Brussels I Regulation (Recast) (Regulation (EU) No 1215/2012) ('Brussels Ia'). Nonetheless, both serve the purpose of preventing contradictory decisions on the same subject matter. Namely, the difference lies with Article 81(2) GDPR, which allows courts discretion to suspend their proceedings. No such discretion exists under the Brussels Ia.

Notably, Article 81's relevance is confined to proceedings related to the private sector. Proceedings against controllers or processors which act as public bodies are confined to the national courts of the Member States where the public body is established. However, in Member States that have a separation between administrative and civil courts (e.g. France, Germany, Italy or Austria) both types of court are subject to Article 81 GDPR.

Scope of Article 81 GDPR

There exist differing opinions among legal scholars as to the scope of Article 81 GDPR. In particular, the discussion concerns what type of court proceedings fall under its ambit. Some Commentators have interpreted Recital 144 GDPR to have limited the scope of Article 81 GDPR, as applying only to proceedings instigated under Article 78 GDPR. The first sentence of Recital 144 GDPR refers to 'court[s] seized of proceedings against a decision by a supervisory authority', but makes no mention of proceedings against a controller or processor, which are subject to Article 79 GDPR. They have interpreted this sentence to have implicitly restricted the applicability of Article 81 GDPR.

This is a reading that we reject. The prevailing opinion, one which we affirm, is that Article 81 GDPR applies to proceedings both under Articles 78 and 79 GDPR. This broader reading of Article 81 GDPR is supported by several interpretative grounds. Firstly, the explicit wording of Article 81 GDPR does not limit its application to proceedings instigated either under Article 78 GDPR or Article 79 GDPR. Secondly, the purpose of Article 81 GDPR is to prevent contradictory decisions arising from parallel proceedings. Consequently, it goes against the provision's purpose to take a restrictive reading of its scope. Lastly, Recital 144 GDPR holds no normative authority. Thus, it cannot limit the scope of a GDPR provision where the GDPR itself does not impose any formal restrictions on the Article's applicability.

(1) Communication regarding parallel proceeding

Article 81(1) GDPR requires that the competent court of a Member State to contact the court of another Member State, when it has information that proceedings concerning the 'same subject matter' by 'the same controller or processor' are pending in that court, to confirm the existence of such proceedings. The purpose of this requirement is to ensure that both Courts are made aware of parallel proceedings.

Obligation to contact court in another Member State

Article 81(1) GDPR places a positive legal obligation on the competent court to contact the court of another Member State, when it becomes aware of (possible) proceedings concerning the same subject matter pending in that court. If the same subject matter is pending in another court of the same Member State, Article 81 GDPR does not apply and the conflict is to be resolved under national law.

This obligation only arises once the court becomes aware that proceedings concerning the same subject matter may be pending in the court of another Member State. In most cases, one or both parties will notify the court of pending parallel proceedings. The competent court is under no obligation to conduct proactive research to determine whether such proceedings exist. However, if the competent court 'has reason to believe that such proceedings exist', it must contact the court in the other Member State to confirm the matter. Due to the provision's use of the imperative 'shall [contact]', the court has no discretionary power in this respect.

Same subject matter

Parallel proceedings are only deemed to arise when they concern the 'same subject matter'. Given that the GDPR does not define the concept, the meaning of 'same subject matter' must be interpreted autonomously. However, Commentators have noted that the meaning cannot be drawn from Article 29 Brussels Ia, which establishes the concept of 'same cause of action'. Instead, its meaning should be formed in light of Article 30 Brussels Ia, whose wording bears a closer resemblance to that of Article 81 GDPR and its supporting Recital 144 GDPR.

For instance, the wording of Recital 144 mirrors that of Article 30(3) Brussels Ia, which notes that proceedings 'are deemed to be related where they are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.' When this Recital is read in line with Article 81(1) GDPR, it is evident that the concept of the 'same subject matter' does not necessitate that the same claim is asserted.

Nevertheless, some scholars argue that for the purposes of Article 81(1), parallel proceedings are only deemed to have occurred when the purpose of the proceedings, the facts and circumstances and the alleged GDPR infringements are identical. However, other scholars more convincingly argue that the decisive factor determining whether proceedings are deemed to have the same subject matter, is whether the claim concerns the same processing activity (as defined by Article 4(2) GDPR), because Article 81(1) GDPR explicitly refers to 'processing by the same controller or processor'. As a result, the Article does not require that all parties to the proceedings are identical. Instead, it necessitates that the same controller or processor are party to different proceedings and that these proceedings concern the same processing activities of the controller or processor, but not that the same data subject(s) must be party to the proceedings.

(2) Suspension of proceedings

If the requirements of Article 81(1) GDPR are fulfilled (meaning, “same subject matter” concerning “the same controller or processor” simultaneously “pending in a court in another Member State”) any competent court other than the court first seized may suspend its proceedings. The courts are under no strict obligation to suspend the proceeding but rather have discretion in this respect. Notably, the wording of Article 81(2) GDPR draws similarities with Article 29(1) Brussels Ia. However, Brussels Ia necessitates the suspension of proceedings until the jurisdiction of the court first seised is established, while the GDPR imposes no similar obligation. Under Article 81 GDPR, Courts are afforded discretion regarding the decision to suspend proceedings.

When assessing the necessity for suspension, the court must take into account Article 47 of the Charter of Fundamental Rights of the European Union (‘CFR’), and avoid overly long proceedings due to suspension. It is not necessary that a party requests the suspension. The court decides on the suspension on its own volition. Contrary to Article 81(3) GDPR, Article 81(2) GDPR does not require that proceedings are suspended only 'on the application of one of the parties', but nevertheless, the competent court should take into account the parties' wishes and requests in its assessment.

Pending

Article 81(2) GDPR imposes temporal considerations, as only competent courts other than the court first seised may suspend their proceedings. The concept of pendency determines the court first seised. However, as the GDPR does not define this concept, its meaning must be interpreted autonomously through Union law. Commentators have suggested that the notion of pendency should be determined through the criteria of Article 32 Brussels Ia, which refers to the date of filing with the court. If both proceedings are pending at the same time, then neither court has the option to suspend proceedings.

(3) Consolidation of proceedings

Article 81(3) GDPR allows for the consolidation of proceedings. The consolidation of proceedings occurs once all competent courts, other than the court first seised, decline jurisdiction. Just as Article 81(2) GDPR affords courts the discretion to suspend proceedings, so does Article 81(3) GDPR in relation to the consolidation of proceedings.

The provision stipulates that where parallel proceedings are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation of the existing proceedings. Consequently Article 81(3) GDPR establishes several cumulative conditions for the consolidation of proceedings:

(i) one of the parties (or both parties) have requested that the relevant court decline jurisdiction;

(ii) all proceedings are still pending at first instance;

(iii) the court first seised has jurisdiction over the actions in question; and

(iv) the Member State law applicable to the proceedings pending in the court first seised permits the consolidation of the proceedings.

The fulfilment of requirement (iv) is a question of Member State law. As not all Member States might provide for the consolidation of legal actions pending in different Member States, this requirement substantially narrows the scope of applicability of Article 81(3) GDPR. Furthermore, it remains unclear how the court subsequently called upon are supposed to assess with sufficient legal certainty if requirements (iii) and (iv) are fulfilled, regarding the court first seised. From a practical viewpoint, these requirements necessitate certain communication and coordination between courts in different Member States.

Decisions

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