Article 84 GDPR

← Article 84 - Penalties →
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 84 - Penalties

1. Member States shall lay down the rules on other penalties applicable to infringements of this Regulation in particular for infringements which are not subject to administrative fines pursuant to Article 83, and shall take all measures necessary to ensure that they are implemented. Such penalties shall be effective, proportionate and dissuasive.

2. Each Member State shall notify to the Commission the provisions of its law which it adopts pursuant to paragraph 1, by 25 May 2018 and, without delay, any subsequent amendment affecting them.

Relevant Recitals

Recital 149: Criminal Penalties by and for Infringements of National Rules

Member States should be able to lay down the rules on criminal penalties for infringements of this Regulation, including for infringements of national rules adopted pursuant to and within the limits of this Regulation. Those criminal penalties may also allow for the deprivation of the profits obtained through infringements of this Regulation. However, the imposition of criminal penalties for infringements of such national rules and of administrative penalties should not lead to a breach of the principle of ne bis in idem, as interpreted by the Court of Justice.

Recital 151: Administrative Fines in Denmark and Estonia

The legal systems of Denmark and Estonia do not allow for administrative fines as set out in this Regulation. The rules on administrative fines may be applied in such a manner that in Denmark the fine is imposed by competent national courts as a criminal penalty and in Estonia the fine is imposed by the supervisory authority in the framework of a misdemeanour procedure, provided that such an application of the rules in those Member States has an equivalent effect to administrative fines imposed by supervisory authorities. Therefore the competent national courts should take into account the recommendation by the supervisory authority initiating the fine. In any event, the fines imposed should be effective, proportionate and dissuasive.

Recital 152: Implementation of a National Penalty System if Necessary

Where this Regulation does not harmonise administrative penalties or where necessary in other cases, for example in cases of serious infringements of this Regulation, Member States should implement a system which provides for effective, proportionate and dissuasive penalties. The nature of such penalties, criminal or administrative, should be determined by Member State law.

Commentary

Article 83 requires Member States to adopt by national law specific provisions for breaches of the GDPR not subject to the discipline of Article 83 GDPR. Such provisions must also be effective, proportionate and dissuasive. Pursuant to paragraph 2, Member States are required to communicate such legislative measures to the European Commission.

(1) Requirements for Member State Laws

Certain violations of the GDPR are not listed in the catalogue of penalties in Article 83 GDPR. National legislators may add provisions to fill these gaps. Under Recital 152 these provisions may either be civil or criminal in nature.

For example, § 62 of the Austrian Data Protection Act (Datenschutzgesetz - DSG) sets a penalty of €50,000 for, among other things, (1) intentionally obtaining illegal access to personal data (2) refusing an inspection by the Austrian DPA, (3) operating a CCTV system in violation of the specific rules set out in the Act. In the Netherlands, additional penalty provisions include Article 21a of the Act implementing the GDPR ('Uitvoeringswet Algemene verordening gegevensbescherming'), which permits the DPA to impose an administrative fine of up to €20 million (or 4% of the total worldwide annual turnover), where the requirements on access by payment service providers to the personal data of their users, established in Article 3.17(7) of the Financial Supervision Act (‘Wet op het financieel toezicht'), are violated.

The GDPR can in this way be viewed as an “atypical hybrid of regulation and directive.” Whilst it establishes an EU-wide penalty regime for violations under Article 83 GDPR, Article 84(1) GDPR dispenses with complete harmonization. It does however provide that any sanctions chosen must be ‘effective, proportionate, and dissuasive,’ which limits national procedural autonomy to some extent. Accordingly, rules on sanctions may not make it impossible in practice to exercise rights conferred by EU law, and must be sufficiently preventative, meaning use is made of the possibility of imposing them across Europe.

Relationship Between Article 83 and 84 GDPR

The extent to which conduct under Article 83 should be excluded from penalties issued under Article 84 is debated. Whilst Popp and Jay argue that the wording of the GDPR is simply unclear in this regard, according to Hert, Boulet, and Lynskey, the existence of a penalty for conduct under Article 83 GDPR should not be seen to preclude a further penalty under Article 84.

For example, in cases where member states lay down criminal provisions under Article 84, Hert and Boulet argue that, this “[allows] an approach where the criminal is only used when the administrative fails.” Lynskey notes that the words ‘in particular’ in Article 84(1) ("Member States shall lay down other penalties […] in particular for infringements which are not subject to administrative fines pursuant to Article 83") supports such a view. In contrast, Mountain points to the phrase ‘other penalties’ (‘Member States shall lay down the rules on other penalties’), which would exclude all sanctions mentioned in Chapter VIII GDPR, i.e. the damages under Article 82 and fines under Article 83, bar where opening clauses exist.

In any case, should fines for conduct falling under the two articles overlap, the principle of ne bis in idem, further discussed in the section below, must be honoured.

Criminal Penalties

Many illegal processing activities under the GDPR may give rise to violations of national criminal laws that are specific to data processing or have broader application (e.g. laws on cybersecurity, fraud and alike). Under § 63 of the Austrian Data Protection Act, for example, individuals who, with the intention of enriching themselves or a third party, deliberately use personal data that have been entrusted to them due to their professional occupation, or which they have illegally acquired, to financially benefit themselves or a third party, may be punished with imprisonment of up to one year.

Under Recital 149 GDPR, the imposition of criminal penalties for infringements of national rules on criminal penalties under Article 84 GDPR, should not lead to a breach of the principle of ne bis idem, as interpreted by the CJEU. This principle, derived from Article 50 CFR, establishes the right to not be tried and punished twice in criminal proceedings for the same criminal offence. As Lynskey notes, the administrative fines under Article 83 GDPR can likely be classified as criminal in nature, as the test in Engel (which asks, for example, whether the fine is punitive, and whether the domestic law treats the fine as criminal law) is satisfied, meaning compliance with Article 50 CFR may be threatened where a criminal sanction is issued under Article 84 for the same conduct. Eurojust has noted the potential that the ne bis in idem principle may also be engaged at a transnational level, and Member States should consider criminal sanctions issued in other Member States.

Decisions

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