Article 80 GDPR

← Article 80 - Representation of data subjects →
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 80 - Representation of data subjects

1. The data subject shall have the right to mandate a not-for-profit body, organisation or association which has been properly constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest, and is active in the field of the protection of data subjects’ rights and freedoms with regard to the protection of their personal data to lodge the complaint on his or her behalf, to exercise the rights referred to in Articles 77, 78 and 79 on his or her behalf, and to exercise the right to receive compensation referred to in Article 82 on his or her behalf where provided for by Member State law.

2. Member States may provide that any body, organisation or association referred to in paragraph 1 of this Article, independently of a data subject’s mandate, has the right to lodge, in that Member State, a complaint with the supervisory authority which is competent pursuant to Article 77 and to exercise the rights referred to in Articles 78 and 79 if it considers that the rights of a data subject under this Regulation have been infringed as a result of the processing.

Relevant Recitals

Recital 142: Right to Mandate a Non-Profit Body, Organisation or Association

Where a data subject considers that his or her rights under this Regulation are infringed, he or she should have the right to mandate a not-for-profit body, organisation or association which is constituted in accordance with the law of a Member State, has statutory objectives which are in the public interest and is active in the field of the protection of personal data to lodge a complaint on his or her behalf with a supervisory authority, exercise the right to a judicial remedy on behalf of data subjects or, if provided for in Member State law, exercise the right to receive compensation on behalf of data subjects. A Member State may provide for such a body, organisation or association to have the right to lodge a complaint in that Member State, independently of a data subject's mandate, and the right to an effective judicial remedy where it has reasons to consider that the rights of a data subject have been infringed as a result of the processing of personal data which infringes this Regulation. That body, organisation or association may not be allowed to claim compensation on a data subject's behalf independently of the data subject's mandate.

Commentary

Article 80 GDPR grants data subjects the right to mandate not-for-profit entities ('NPOs') for the enforcement of their rights under the GDPR. The purpose of this provision is to remedy the deficits of legal protection for individuals and facilitate the enforcement of the GDPR. The Article regulates how and which NPOs may be mandated by data subjects.

In contrast to the data subject's right to mandate a NPO to lodge complaints and exercise the rights referred to in Articles 77, 78 and 79 GDPR, wich exists independent from any implementation in national law, the right to mandate a NPO to claim compensation under Article 82 GDPR on his or her is subject to such an implementation.

The second paragraph of Article 80 GDPR contains another opening clause allowing Member States to introduce a right to lodge complaints to data protection authorities and file judicial remedies with national courts independently of a mandate by a data subject.

(1) Data subject right to mandate an NPO

Article 80(1) GDPR establishes the data subject right to mandate a not-for-profit body, organisation or association to lodge a complaint on their behalf, to exercise the rights referred to in Articles 77, 78, 79 and 82 GDPR.

Requirements under Article 80(1) GDPR

The first paragraph of Article 80 GDPR establishes several cumulative conditions for entities to qualify as NPOs. For the purposes of Article 80(1) GDPR must be (i) a not-for-profit body, organisation or association, (ii) properly constituted in accordance with the law of a Member State, (iii) have statutory objectives which are in the public interest, and (iv) must be active in the field of the protection of data subjects’ rights and freedoms with regard to the protection of their personal data.

Example: The CJEU affirmed the status of a consumer protection association as a NPO under Article 80(1) since the association perused a "public interest objective consisting in safeguarding the rights and freedoms of data subjects in their capacity as consumers", since such an objective is related to the protection of the personal data of those persons.

(i) Not-for-profit

The understanding of the term 'not-for-profit' must be given an autonomous meaning, its interpretation in this context should not be determined by Member State law. Essentially, an NPO must not pursue profit-making objectives. However, it may recover its costs by charging a fee or a reimbursement of expenses for its activities, so long as this does not pursue profit-making aims.

(ii) Body, organisation or association properly constituted in accordance with the law of a Member State

The term “body, organisation or association” encompasses only legal persons independent of their legal form under Member State law, but not natural persons. In this regard, the decisive factor is whether an entity is capable of holding rights and obligations under its Member States' national law. Organisations established outside of the Union and European Economic Area cannot represent data subjects under Article 80(1) GDPR. An NPO can be organised under public law of a Member State (such as national chambers of labour or consumer protection organisations foreseen by statutory law), or under civil law (such as private associations).

(iii) Public interest

The interpretation of the term 'public interest' must be done so autonomously, independently of Member State law. The term is to be read broadly, and incorporates the protection of other fundamental rights and freedoms under Union law, as well as the promotion of the general principles of Union law as established in the TEU and TFEU. Notably, the public interest does not need to be restricted solely to data protection law. Nonetheless, the NPO's activities must be in some capacity active in the field of data protection.

(iv) Active in the field of data protection

As noted above, Article 80(1) GDPR does not necessitate that the NPO is exclusively active in the field of data protection. However, it must at least be active in the public interest with a connection to data protection. This requirement would include, for example, consumer protection organisations, workers unions or chambers of labour but excludes entities pursuing commercial interests.

Representation of a data subject under Articles 77, 78 and 79 GDPR

Article 80(1) GDPR establishes the data subject right to mandate an NPO, so long as the NPO qualifies as such in light of the Article's requirements. Firstly, the data subject may mandate the NPO to lodge a complaint under Article 77(1) GDPR on behalf of the data subject and to represent the them before all supervisory authorities (“SA”) (Article 4(21) GDPR). Secondly, the NPO may be mandated to file for a legal remedy under Article 78(1) GDPR against a legally binding SA decision concerning the data subject. Thirdly, the NPO may file for a legal remedy under Article 78(2) GDPR, on behalf of the data subject, where the competent SA for the purposes of Articles 55 and 56 GDPR does not handle a complaint, or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77 GDPR. Lastly, the NPO may file a legal remedy under Article 79 GDPR against a controller or processor regarding a GDPR infringement.

Representation of a data subject under Article 82 GDPR, where provided for by Member State law

The conditions for the right to mandate an NPO for the exercise of the right to receive compensation under Article 82 GDPR, can be distinguished from the right to mandate an NPO for the exercise of the rights under Articles 77, 78 and 79 GDPR. The provision includes an opening clause, which notes that the right to mandate an NPO for the exercise of the rights under Article 82 GDPR, can only be given effect 'where provided for by Member State law'. Consequently, the regulation of representation in damages proceedings are left to the Member States.

The majority of Commentators have interpreted the conditional phrase 'where provided for by Member State law' in Article 80(1) GDPR, as only applying to the mandate for the exercise of the right to receive compensation under Article 82 GDPR. In relation to the right to mandate an NPO for the exercise of the rights under Articles 77, 78, and 79 GDPR, there is no prior requirement for further legislation by the Member State.

This reading is further supported by Recital 142 GDPR, which clarifies that the words 'where provided for by Member State law' only apply to the exercise of the right to receive compensation referred to in Article 82 GDPR. Furthermore, the legislative history of Article 80 GDPR affirms this interpretation. The right to mandate a NPO when exercising the right to receive compensation under Article 82 GDPR was not included in the initial draft of Article 80 GDPR (then Article 73) and was only inserted later by the European Parliament. Following the submission of the original draft, during the Trialogue proceedings, the right to mandate NPOs when exercising the right to compensation was made subject to an opening clause.

Nonetheless, even in instances where a Member State has not made use of the opening clause in relation to Article 82 GDPR, claims for damages may still be undertaken by an NPO if this is permitted under the civil law of the Member State. In such cases, the NPO would not represent the data subject but claim the assigned damages on its own behalf and forward any compensations received through the court proceedings to the data subject.

The Collective Redress Directive (Directive (EU) 2020/1828) foresees that qualified non-profit entities shall be entitled to bring representative actions on behalf of consumers for certain infringements of EU law. According to Article 2 and Annex 1 of the Collective Redress Directive, these actions include issues relating to GDPR infringements. Depending on the respective national implementation of the Collective Redress Directive, the opening clause in Article 80(1) GDPR might become somewhat redundant, as Member States would have to entitle NPOs to represent data subjects in connection with claims for compensation under Article 82 GDPR.

(2) Independent complaints and lawsuits where provided for by Member State law

The second paragraph of Article 80 GDPR also acts as an opening clause, which enables Member States to provide for the right of NPOs to file a complaint or instigate legal proceedings in the absence of a mandate by a data subject's mandate. Therefore, it is in the discretion of the member states to implement this provision into their national law. In the absence of such an implementation an NPO cannot bring forward a representative action in accordance with this provision.

Example: Regarding the member state's discretion in the implementation of this provision, the CJEU held that Article 80(2) of the GDPR must be interpreted as not precluding national legislation which allows a consumer protection association to bring legal proceedings, on the basis of the infringement of the prohibition of unfair commercial practices, a breach of a consumer protection law or the prohibition of the use of invalid general terms and conditions, where the data processing concerned can affect the rights data subjects derive from the GDPR.

According to Article 80(2) GDPR, where implemented by Member States, this right extends to the lodging of a complaint in accordance with Article 77 and to the legal remedies listed in Articles 78 and 79 GDPR. However, the provision does not cover the claim for for compensation under Article 82 GDPR. This exclusion of Article 82 GDPR is confirmed by the last sentence of Recital 142 GDPR which states that NPOs "may not be allowed to claim compensation on a data subject's behalf independently of the data subject's mandate".

In addition, Article 80(2) GDPR does not permit Member States to allow NPOs to take legal actions against any kind of GDPR infringement. The wording of Article 80(2) GDPR specifically requires that the NPO “[…] considers that the rights of a data subject under this Regulation have been infringed as a result of the processing.” Hence, NPOs must have reasons to consider that the rights of a data subject under that regulation have been infringed as a result of the processing of personal data which infringes the GDPR. In connection with this requirement the CJEU found that an infringement of the data subject's right to information under Article 12 and 13 GDPR can be regarded as an infringement of the data subject's rights "as a result of the processing" within the meaning of Article 80(2) GDPR.

It should be noted that this specification does not require the NPO to name or identify a a specific data subject that is affected by the data processing that is contrary to provisions of the GDPR. Rather this question must be assessed on an abstract level, looking to whether any data subjects’ GDPR rights could have been violated by the processing activity in question.

Decisions

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