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 stipulates rules for the coordination of courts of different Member States handling related proceedings in order to avoid contradictory decisions by different courts on the same subject matter.

Article 81(1) GDPR puts the competent court under the obligation to contact courts in other Member States where the same subject matter is pending.

Article 81(2) GDPR allows for competent courts other than the court first seized to suspend parallel proceedings.

Article 81(3) GDPR stipulates when competent courts other than the court first seized may decline jurisdiction in case of parallel proceedings.

Article 81 GDPR addresses the courts but not the DPAs of the Member States. There are different opinions among legal scholars as to which court proceedings Article 81 GDPR applies too. Some argue that Article 81 GDPR applies only to proceedings under Article 78 GDPR, because Recital 144 sentence 1 only mentions the situation to where “a court seized of proceedings against a decision by a supervisory authority”, but does not mention proceedings against a controller or processor (which are subject to Article 79 GDPR). However, the prevailing opinion among legal scholars is that it Article 81 GDPR applies to proceedings under both Article 78 and 79 GDPR since, (i) the wording of Article 81 GDPR is not limited to either proceedings under Article 78 or 79 GDPR, (ii) the purpose of Article 81 GDPR is to avoid contradictory decisions and (iii) Recital 144 GDPR is of no normative nature and hence cannot limit the scope of GDPR provision. As a result, Article 81 GDPR applies to both courts handling proceedings against DPAs under Article 78(1) and (2) GDPR and courts handling proceedings against controllers or processors against Article 79(1) GDPR. In Member States that have a separation between administrative and civil courts (e.g. France, Germany, Italy or Austria) this means that both strains of courts are subject to Article 81 GDPR.

(1) Communication Regarding Parallel Proceeding

Obligation to contact court in other Member State

Article 81(1) GDPR addresses only courts that are competent under Article 78(3), Article 79(2) or Article 82(6) in connection with Article 79(2) GDPR and that are aware of (possible) proceeding concerning the same subject matter pending in a court of another Member State. The competent court is under no obligation to conduct proactive research if such proceedings exist – in most cases, one or both parties will notify the court of pending parallel proceedings. Once the competent court is aware of such proceedings or has reason to believe that such proceedings exist, it has to contact the court in the other Member State to confirm the existence of such proceedings. The court has no discretionary power in this respect (“shall contact”).

Same subject matter

The question of whether the same subject matter is pending before another court is not entirely clear.The GDPR contains no definition of this term. According to Recital 144 sentence 3 GDPR, “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.” In light of this, some scholars argue that the purpose of the proceedings, the facts and circumstances and the alleged GDPR infringements must be identical to assume that procedures concern the same subject matter. However, as Article 81(1) GDPR speaks of “processing by the same controller or processor”,  other scholars – we believe, more convincingly – argue that the decisive factor in determining whether a proceeding concerns the same subject matter is the processing activity under Article 4(2) GDPR. It is not required that all parties of the proceedings are identical – it is necessary that the same controller or processor conduct the processing but not that it concerns the same data subject(s).

(2) Authorisation to Suspend Proceedings

If the requirements of Article 81(1) GDPR are fulfilled (meaning proceedings concerning the same subject matter as regards processing by 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. Again, this only addresses competent courts (Article 78(3), Article 79(2) or Article 82(6) in connection with Article 79(2) GDPR).

The court is under no strict obligation to suspend the proceeding but rather has discretionary power. When assessing the necessity for suspension, the court must take into account Article 47 CFR and avoid overly long proceedings due to suspension and possible requests for the CJEU’s preliminary ruling by the court first seized. 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 contain the requirement “on the application of one of the parties”) but should take into account the parties wishes/requests in its assessment.

(3) Authorisation to Decline Jurisdiction

Article 81(3) GDPR again addresses any competent court, other than the court first seized. The court subsequently called upon may also (meaning “instead of or in addition to suspending the proceedings under Article 81(2) GDPR”) decline jurisdiction if

(i) one of the parties (or both parties) requested this and

(ii) the proceedings are pending at first instance (meaning proceedings on the same subject matter, as referred to in Article 81(2) GDPR) and

(iii) the court first seized has jurisdiction over the actions in question (meaning also over the action filed with the court subsequently called upon) and

(iv) the Member State law applicable on the proceedings pending in the court first seized permits the consolidation of the actions in question.

The fulfilment of requirement (iv) is a question of Member State law. As not all Member States might provide for 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 is supposed to assess with sufficient legal certainty if requirements (iii) and (iv) are fulfilled regarding the court first seized. From a practical viewpoint, this requires certain communication and coordination between courts in different Member States.

Like the suspension under Article 81(2) GDPR, the decision on declining jurisdiction under Article 81(3) GDPR is subject to the court’s discretionary power.

Decisions

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