Article 77 GDPR

← Article 77 - Right to lodge a complaint with a supervisory authority →
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 77 - Right to lodge a complaint with a supervisory authority

1. Without prejudice to any other administrative or judicial remedy, every data subject shall have the right to lodge a complaint with a supervisory authority, in particular in the Member State of his or her habitual residence, place of work or place of the alleged infringement if the data subject considers that the processing of personal data relating to him or her infringes this Regulation.

2. The supervisory authority with which the complaint has been lodged shall inform the complainant on the progress and the outcome of the complaint including the possibility of a judicial remedy pursuant to Article 78.

Relevant Recitals

Recital 141: Right to lodge a complaint - Article 77(1)

Every data subject should have the right to lodge a complaint with a single supervisory authority, in particular in the Member State of his or her habitual residence, and the right to an effective judicial remedy in accordance with Article 47 of the Charter if the data subject considers that his or her rights under this Regulation are infringed or where the supervisory authority does not act on a complaint, partially or wholly rejects or dismisses a complaint or does not act where such action is necessary to protect the rights of the data subject. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The supervisory authority should inform the data subject of the progress and the outcome of the complaint within a reasonable period. If the case requires further investigation or coordination with another supervisory authority, intermediate information should be given to the data subject. In order to facilitate the submission of complaints, each supervisory authority should take measures such as providing a complaint submission form which can also be completed electronically, without excluding other means of communication.

Commentary

(1) Right to a formal complaint

Requirements

Article 77(1) only has two requirements: (1) A data subject must consider that (2) his or her personal data was processed in violation of GDPR.

Data subject

The complainant must be a data subject within the meaning of Article 4(2) GDPR.

As only an actual investigation can determine if the data of a complainant is or was actually processed, the data subject must de facto only allege that he or she is a data subject.

The requirement to be a data subject makes third party complaints ((actio popularis)) impossible under Article 77.

→ See below for alternative forms of submissions

Alleged processing in violation of the GDPR

The data subject must at least allege that his or her data is processed in violation of the GDPR.

National procedural requirements

National procedural laws may require further elements in a submission. Any such requirements may however not undermine the effectiveness of Article 77(1) and may not more burdensome than requirements in equivalent national procedures.

Many DPAs provide forms that ensure that a complainant includes all relevant information in a complaint as suggested in the last sentence of Recital 141.

Jurisdiction for filing the case

A(ny) DPA

The GDPR only requires that a supervisory authority (DPA) is addressed by the complaint. This general rule is only expanded by a non-exhaustive (in particular) list of possible DPAs. In summary this means, that a complainant may file a complaint with any DPA in Europe, independent of location.

Habitual residence

The most common place to file a complaint is the home jurisdiction of the complainant. The habitual residence is defined in different EU laws and requires a legal right to residence and an objective assessment of the factual residence.

This option allows to file a complaint in the local language of the data subject.

Place of work

Similar to the habitual residence, complainants can file a complaint at their work place. This may be relevant for cases in employment cases, but it is not required that the complaint has any connection to the work place.

Place of alleged infringement

The complaint can be brought at the place of the alleged infringement. This clause is a typical form of jurisdiction, that is aimed to align location of the decision maker with the location of facts.

Example: The DPA that is close to a CCTV camera may be best placed to gather factual evidence on the CCTV system, without the need to request mutual assistance from other DPAs.

Cross country cases

The option to file a case with any DPA does not mean that this DPA necessarily decides about the case.

→ See Article 56 GDPR for the definition of the lead supervisory authority.

Alternative forms of submissions

Opening Clause

Article 77(1) GDPR explicitly recognizes that Member States may provide for additional forms of submissions and redress. They may however not replace the right to launch a formal complaint.

Informal Petitions

Some DPAs also allow different form of informal submissions that can be best described as "petitions". Petitions are informal submissions that inform the DPA of an issue. Anyone can petition a DPA, without the need to be a data subject. At the same time petitions do not require the DPA to take any action and the petitioner is usually not a party to the procedure. The petitioner usually has no right to appeal under Article 78 GDPR.

GDPR does not know petitions. Petitions may have a legal basis in national law, such as a general "right to petition" any government authority.

(2) Duty to inform the data subject

Progress

You can help us fill this section!

Outcome

You can help us fill this section!

Every three Months

You can help us fill this section!

Information about Article 78

You can help us fill this section!

National procedural law

In addition to the requirements of Article 77, the procedural law of the Member States defines all further details of the procedure. National procedural laws are only applicable as far as they comply with the EU principles of equivalence and effectiveness.

You can find more details about the applicable national procedural laws in the DPA profiles.

Decisions

→ You can find all related decisions in Category:Article 77 GDPR