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 contains rules on the powers of not-for-profit entities active in the field of field of the protection of data subjects’ rights and freedoms with regard to GDPR (henceforth referred to as “NPOs” for “non-profit organisations”):

• Article 80(1) first case GDPR grants a subjective right to data subjects to mandate NPOs to lodge complaints under Article 77 GDPR or to file judicial remedies under Articles 78 and 79 GDPR.
• Article 80(1) second case GDPR contains an opening clause: Where provided for by Member State law, data subjects can mandate NPOs to claim damages under Article 82 GDPR on their behalf.
• Article 80(2) GDPR also contains an opening clause: Where provided for by Member State law, a NPO has the right to lodge complaints under Article 77 GDPR or to file judicial remedies under Articles 78 and 79 GDPR independently of a data subject’s mandate, if the NPO considers that the rights of a data subject under the GDPR have been infringed as a result of the processing.

Entitled entities

The NPO acting on behalf of the data subject (Article 80(1) GDPR) or, if possible, on its own accord (Article 80(2) 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. The term “body, organisation or association” encompasses only legal persons independent of their legal form under Member State law, but not natural persons. The 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).

It is not required that the NPO is exclusively active in the field of data protection but it must at least be active in the public interest with a connection to data protection. This includes 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

Under Article 80(1) first case GDPR, the data subject has the right to mandate a NPO that fulfils the requirements described above with the following tasks:

• Lodging a complaint under Article 77(1) GDPR on behalf of the data subject and representing the data subject before all DPAs (Article 4(21) GDPR) involved the further course of the proceedings.
• Filing a legal remedy under Article 78(1) GDPR against a legally binding DPA decision concerning the data subject.
• Filing a legal remedy under Article 78(2) GDPR where the DPA competent under 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.
• Filing a legal remedy under Article 79 GDPR against a controller or processor regarding a GDPR infringement.

Article 80(1) GDPR directly provides for these rights to mandate a NPO, without the necessity of an implementation in Member State law. As recital 142 GDPR clarifies, the words “where provided for by Member State law” only refer to exercising right to receive compensation referred to in Article 82 GDPR. The legislative history of Article 80 GDPR further supports this interpretation: the right to mandate a NPO with exercising the right to compensation under Article 82 GDPR was not part of the initial draft of Article 80 GDPR (then Article 73) but only inserted by the European Parliament. Later – in the course of Trilog Negotiations – the right to mandate NPOs with exercising the right to compensation was made subject to an opening clause.

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

Where foreseen by Member State law, a NPO can exercise the right to receive compensation under Article 82 GDPR on behalf of a data subject. Details of the rules on representation in damages proceedings are left to the member states. Even where the Member State has not made use of the opening clause in Article 80(1) second case GDPR claims for damages can be assigned to the NPO, if such assignment is possible under civil law of the Member State. In such cases, the NPO would of course not represent the data subject but claim the assigned damages on its own behalf and further any compensations received through the court proceedings to the data subjects.

The Collective Redress Directive 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(53) of the Collective Redress Directive, this includes GDPR infringements. Depending on the respective national implementation of the Collective Redress Directive, Article 80(1) second case GDPR might become somewhat redundant, as Member States would have to entitle NPOs to represent data subjects in connection with claims for compensation und Article 82 GDPR.

Abstract complaints and lawsuits where provided for by Member State law

According to the opening clause in Article 80(2) GDPR, Member states can foresee that NPOs can – in that Member State – (i) file complaints under Article 77 GDPR, (ii) bring legal proceedings under Article 78 GDPR against a DPA  and (iii) bring legal proceedings against controllers or processors under Article 79 GDPR, independent of the mandate of a specific data subject. As the last sentence of Recital 142 GDPR clarifies this does not extend to Article 82 GDPR: a NPO may not be allowed by Member State law to claim compensation on a data subject’s behalf independently of the data subject’s mandate.

Article 80(2) GDPR does not allow Member States to foresee that NPOs can 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, Member States may only foresee the NPO’s right to lodge complaints/bring legal proceedings with regard to GDPR provisions that grant subjective rights to data subjects (see commentary on Article 77 GDPR “Alleged Infringement” and commentary on Article 79 GDPR “Processing in non-compliance with the GDPR and infringement of the plaintiff’s rights under the GDPR” for the scope of enforceable subjective rights under the GDPR). However this does not mean, that a DPA or court would need to assess if a specific data subject’s right under the GDPR has been violated. Rather it must be assessed on an abstract level, if any data subjects’ GDPR rights could have been violated by the processing activity in question.

Decisions

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