OGH - 6Ob77/20x

OGH - 6Ob77/20x
Court:	OGH (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 25 GDPR Article 77 GDPR Article 78 GDPR Article 79 GDPR Article 80 GDPR Article 84 GDPR Article 267 TFEU § 28 Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG) § 29 Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG)
Decided:	25.11.2020
Published:	13.01.2021
Parties:	Verein für Konsumenteninformation (VKI)
National Case Number/Name:	6Ob77/20x
European Case Law Identifier:	ECLI:AT:OGH0002:2020:RS0133358
Appeal from:
Appeal to:	Not appealed
Original Language(s):	German
Original Source:	Rechtinformationssystem des Bundes (RIS) (in German)
Initial Contributor:	Marco Blocher

The Austrian Supreme Court requested a preliminary ruling from the CJEU on whether Article 80 GDPR hinders organisations, that are entitled to bring class actions under national (consumer protection) law from bringing such lawsuits in data protection cases.

English Summary

Background

The Verein für Konsumenten Information (VKI) is an Austrian consumer rights organisation and entiteld to bring collective redress lawsuits and class actions in the interest of consumers pursuant to §§ 28 and 29 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG).

The VKI brought a lawsuit against two car rental companies due to their allegedly unlawful general terms and conditions, which contained clauses that are (accordning to the VKI) violatingArticle 25(2) GDPR. The decisions of the first and second court were appealed, the case is currently (January 2021) still pending at the Austrian Supreme Court (Oberster Gerichtshof - OGH), which referred to following question to the CJEU under Article 267 TFEU:

Does the GDPR preclude national regulations which, among other things, grant associations the power to take action for violations of the GDPR by way of an action before the civil courts, irrespective of the violation of specific rights of individual data subjects, inter alia from the point of view of the prohibition of the use of ineffective general terms and conditions?

Holding

The OGH will take its decision in the merits of the case once the CJEU has decided on the requested preliminary ruling. This page will be adapted accordingly then and linked to the CJEU decision which will also be published on GDPRhub.eu.

Comment

See here for the press relase of the plaintiff (in German).

The CJEU might decide that class actions are only possible if the national legislator has made use of the opening clauses in Article 80(1) and (2) GDPR ("closed shop"). In this case, consumer rights associations would be barred from bringing GDPR class actions unless especially provided for by member state law.

On 27.01.2012, the OGH stayed the procedure in a similar case that revolved around the same issue and is therefore also depending on the CJEU's preliminary ruling. This case can be found here (in German).

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Court
SUPREME COURT

Legal record number
RS0133358

Date of decision
25.11.2020

Reference number
6Ob77/20x

Norm
TFEU Lisbon Art267; KSchG §28; KSchG §29; DSGVO Art25; DSGVO Art77; DSGVO Art78; DSGVO Art79; DSGVO Art80; DSGVO Art84

Legal sentence
The following question is referred to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU:

Do the provisions in Chapter VIII, in particular in Art. 80 para.1  and 2 and Art. 84(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation, OJ L 119/1 of 4 May 2016, p. 1; hereinafter "GDPR") preclude national regulations which, in addition to the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the legal protection options of the data subjects, grant, on the one hand, competitors and, on the other hand, associations, bodies and chambers authorized under national law the power to  to take action for infringements of the GDPR, irrespective of the infringement of specific rights of individual data subjects and without a mandate from a data subject, against the infringer by way of an action before the civil courts under the aspects of the prohibition on engaging in unfair commercial practices or the infringement of a consumer protection law or the prohibition on using ineffective general terms and conditions?

Decision Text TE OGH 2020-11-25 6 Ob 77/20x

European Case Law IdentifierECLI:AT:OGH0002:2020:RS0133358