Article 77 GDPR
Legal Text
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
Commentary
Article 77(1) GDPR stipulates the data subject’s right to lodge a complaint with a supervisory authority (“SA”) in case of GDPR violations. Article 77(2) GDPR places the SA with which the complaint has been lodged under an obligation to inform the complainant on the progress and the outcome of the complaint. Both Article 77(1) and (2) GDPR are directly applicable and do not require transposition into national law. However, the details of the complaints procedure are subject to Member State law, which must observe the requirements and objectives of the GDPR.[1] Many SAs provide forms that ensure that a complainant includes all relevant information as suggested in the last sentence of Recital 141 GDPR.
(1) Right to a formal complaint
Under Article 77(1) GDPR, every data subject shall have the right to lodge a complaint with a SA, in particular in the Member State of their habitual residence, place of work or place of the alleged infringement, if the data subject considers that the processing of personal data relating to them infringes the GDPR.
Without prejudice to any administrative or judicial remedy
The right to file a complaint under Article 77(1) does not limit any other administrative or judicial remedies available. The supervisory authority cannot redirect the complainant to pursue another remedy. Furthermore, lodging a complaint with a supervisory authority does not impact the eligibility or validity of other remedies. For instance, a data subject can still initiate legal proceedings against a controller or processor (as per Article 79) irrespective of whether a complaint has been lodged with a supervisory authority, either concurrently or independently.[2]
CJEU: The CJEU has recently clarified that "Article 77(1), Article 78(1) and Article 79(1) of Regulation (EU) 2016/679 [...] must be interpreted as permitting the remedies provided for in Article 77(1) and Article 78(1) of that regulation, on the one hand, and Article 79(1) thereof, on the other, to be exercised concurrently with and independently of each other. It is for the Member States, in accordance with the principle of procedural autonomy, to lay down detailed rules as regards the relationship between those remedies in order to ensure the effective protection of the rights guaranteed by that regulation and the consistent and homogeneous application of its provisions, as well as the right to an effective remedy before a court or tribunal as referred to in Article 47 of the Charter of Fundamental Rights."[3]
The decision of whether to choose the complaint procedure or another remedy lies with the affected individual and may be influenced by practicality or efficiency aspects, in addition to legal considerations.
The data subject
The provision requires that the "data subject considers that the processing of personal data relating to him or her infringes the Regulation." From this perspective, the essential condition is that the controller, joint controller, or processor has processed or is processing the personal data of the data subject in a manner that violates the Regulation. Consequently, if no data processing has ever occurred, there is obviously no basis for filing a complaint.
However, this interpretation should not lead to extreme outcomes. There are certain situations where, even in the absence of data processing, a complaint may still seem justifiable, avoiding systematically unacceptable interpretations. First, consider, for example, the case of the privacy policy under Article 13 of the GDPR. This information is typically provided before the data processing begins, and yet, there is no doubt that the right to information under Article 13 is a fundamental right and a violation of it can be subject to a complaint to the supervisory authority. Second, a similar situation arises with Article 15(1) of the GDPR, which grants the data subject the right to obtain "from the controller confirmation as to whether or not personal data concerning him or her are being processed." If the controller fails to respond to such a request, a clear violation of the GDPR occurs. Once again, there is no doubt that the data subject can file a complaint under Article 77 of the GDPR, simply due to not having received such a response, regardless of whether any personal data processing has actually taken place or is ongoing. Third, another scenario is when a controller, upon being informed of the data subject's intention to take legal action for unlawful data processing, intentionally deletes the data to avoid potential liabilities, thus violating Article 17(3)(e) of the GDPR. In this case, indeed, no ongoing data processing exists, and a strict application of Article 77 would lead to the complaint being deemed inadmissible. However, once again, such a conclusion would be entirely unacceptable.
In light of the above, it must be concluded that, in general terms, a complaint under Article 77 is only admissible when there is ongoing processing of personal data related to the complainant. Nevertheless, in certain specific situations, such as those mentioned above, which have the character of "lex specialis" in relation to the general provision of Article 77, the complaint remains admissible.
Shall have the right to lodge a complaint
The complaint to the SA can be lodged informally. In accordance with Article 57(2) GDPR, the SAs shall facilitate the submission of complaints, in particular through an online form or other similar channels. As part of the obligation to facilitate, SAs shall communicate their contact options clearly and use as many means of communication as possible.[4] An obligation on the complainant to provide information and, if necessary, to prove their identity exists only to the extent necessary to verify their right to lodge a complaint. In principle, the SA is also obliged to deal with anonymous complaints. Insisting on the indication of name and address, for example, should not be necessary on a regular basis. On this issue, it should be noted that a copy of an ID card has no probative value, since copies of ID cards are very easy to obtain or create and can be manipulated or generated electronically. Identification systems based on the eIDAS Regulation, however, easy online identification throughout the EU.[5]
If there is an infringement
The data subject must at least allege that their data is processed in violation of the GDPR. Contrary to the prevailing opinion among legal scholars,[6] some SAs have taken the stance that the right to lodge a complaint is limited to violations of data subject rights under Chapter III of the GDPR (“Rights of the data subject“).[7]
For the following reasons, the academic opinion provides the more compelling arguments. First, the language of Article 77(1) GDPR does not contain any limitations to violations of Chapter III rights. Second, Article 8(2) Charter of Fundamental Rights of the EU (“CFR”) already foresees that personal data “must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.” These requirements are laid down in detail in Articles 5 to 10 GDPR. In light of Article 41 and Article 47 CFR, limiting complaints to the violation of Chapter III GDPR would therefore violate not only the GDPR but also primary EU law. Third, a limitation to violations of Chapter III rights would also result in massive enforcement deficiencies. A data subject would have no possibility to have certain processing activities reviewed by a SA. For example, a processing activity that is based on an algorithm that produces incorrect data on a regular basis could not be addressed under Article 16 GDPR as Article 16 GDPR can only be invoked to rectify existing inaccurate data but not to stop the ongoing creation of incorrect data that is based on existing correct data. In this case, the data subject would have to rely directly on the principle of accuracy under Article 5(1)(d) GDPR in conjunction with Articles 24 and 25 GDPR and ask the SA to order the controller to bring the processing operation into compliance with the GDPR under Article 58(2)(d) GDPR or even ban it under Article 58(2)(f) GDPR.
Therefore, complaints under Article 77 GDPR should extend to a broad range of violations concerning, inter alia: the principles of data processing (Article 5 GDPR), the lawfulness of processing (Articles 6, 9 and 10 GDPR), the conditions for consent (Articles 7 and 8 GDPR), information under Article 11(2) GDPR, provisions of Chapter III of the GDPR (Articles 12 to 22 GDPR), the duty to communicate a personal data breach to the data subject (Article 34 GDPR), the provisions on data transfers to third countries or international organisations under Chapter V of the GDPR (Article 44 et seq. GDPR).[8]
With a(ny) supervisory authority
The GDPR only requires that a SA is addressed by the complaint. This general rule is only limited by a non-exhaustive list of possible SAs. This means that a complainant may file a complaint with any SA in the European Economic Area, independent of location.[9]
Habitual residence
The most common place to lodge 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. Especially in cross border cases, data subjects might want to choose to lodge complaints at the place of their habitual residence, as this allows for the data subject to file the complaint in (one of) the official languages of the relevant Member State, rather than the official language of the Member State that the controller is based in.
Place of work
Similar to the habitual residence, complainants can lodge a complaint before the SA of their work place. It is not required that the complaint has any connection to the place of work.
Place of alleged infringement
The complaint can also be lodged before the SA of the place of the alleged infringement. This clause is a typical form of jurisdiction that is aimed at aligning the location of the decision maker with the location of facts. Example: The SA that is closest 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 SAs.
Cross country cases
The option to lodge a complaint with any SA does not mean that the SA with which the case has been lodged necessarily decides about the case. Which SA actually handles the case is subject to Article 55 and 56 GDPR. In any case the SA with which the complaint has been lodged remains a “supervisory authority concerned” under Article 4(22)(c) GDPR and the point of contact for the data subject (“one-stop shop”).
(2) Duty to inform the data subject
Under Article 77(2) GDPR, “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.” This provision only addresses the SA with which the complaint has been lodged but not the SA ultimately handling the case under Articles 55 and 56 GDPR (which might be the same or a different SA). The SA’s report on the progress as well as the final decision must include information on the possibility for a judicial remedy under Article 78(2) GDPR and Article 78(1) GDPR respectively.
Article 77(2) GDPR does not stipulate a deadline by which the data subject has to be initially informed about the progress of the complaint, nor does it contain rules on the frequency of such “progress reports”. Read in conjunction with Article 57(1)(f) GDPR (“[…] inform the complainant of the progress and the outcome of the investigation within a reasonable period, […]”) , the SA must inform the data subject within a reasonable period.
Moreover, under Article 78(2) GDPR, a data subject has the right to an effective judicial remedy where the SA that is competent pursuant to Article 55 and 56 GDPR does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77 GDPR. It must be noted that other than Article 77(2) GDPR, Article 78(2) does not address the SA with which the complaint has been lodged but rather the SA that is competent to handle the case under Articles 55 and 56 GDPR.
Thus, if the SA with which the complaint has been lodged is also competent to handle the case under Article 55 GDPR, the SA has to inform the data subject within three months after receipt of the complaint on its progress or outcome under Article 78(2) GDPR. Vice versa, if the SA with which the complaint has been lodged is not competent to handle the case (but rather the lead SA under Article 56 is), then the SA with which the complaint has been lodged must inform the data subject under Article 77(2) GDPR.
The first information usually is an acknowledgement of receipt and a notice that the case has been forwarded to an (alleged) lead LSA. Although there is no specific deadline for this information, the three-month period of Article 78(2) GDPR should be applied per analogiam. As soon as the lead SA is established (which very often takes longer than three months), it must inform the data subject within three months after receipt of the complaint on its progress or outcome under Article 78(2) GDPR. For practical reasons, the SA with which the complaint has been lodged usually informs the data subject on behalf of the lead SA on this.
Decisions
→ You can find all related decisions in Category:Article 77 GDPR
References
- ↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 26 (C.H. Beck 2020, 3rd edition). This includes that the lodging of a complaint and its handling by a SA shall be free of charge for the data subject (Article 57(3) GDPR).
- ↑ Pötters, Werkmeister in Gola, DS-GVO, Article 77 GDPR, margin number 4 (C.H. Beck 2022, 3rd edition).
- ↑ CJEU - C-132/21 - Nemzeti Adatvédelmi és Információszabadság Hatóság (available here).
- ↑ Bailey, in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition)
- ↑ Bailey, in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition)
- ↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 10 (Beck 2020, 3rd edition); Nemitz in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 77 GDPR, margin number 16 (Beck 2018, 2nd edition); von Lewinksi in Auernhammer, DSGVO BDSG, Article 77 GDPR, margin number 2 (Carl Heymanns 2018, 6nd edition).
- ↑ Datenschutzbehörde, 13 September 2018, das Bundesministerium für Europa, Integration und Äußeres, das Bundeskanzleramt, DSB-D123.070/0005-DSB/2018, (available here).
- ↑ Schweiger in Knyrim, DatKomm, Article 77 GDPR, margin number 11 (as of 22.4.2021, rdb.at).
- ↑ Bergt in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 9 (Beck 2020, 3rd edition).