Article 77 GDPR: Difference between revisions

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== Legal Text ==
== Legal Text ==
<br /><center>'''Article 77 - Right to lodge a complaint with a supervisory authority'''</center><br />
<br /><center>'''Article 77 - Right to lodge a complaint with a supervisory authority'''</center>


<span id="1">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.</span>
<span id="1">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.</span>
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== Commentary ==
== Commentary ==
Article 77(1) GDPR stipulates the data subject’s right to lodge a complaint with a DPA if the data subject suspects a GDPR violation regarding personal data relating to him or her; Article 77(2) GDPR places the DPA with which the complaint has been lodged under an obligation to inform the complainant on the progress and the outcome of the complaint.
Article 77(1) GDPR stipulates the data subject’s right to lodge a complaint with a supervisory authority (“''SA''”) if the data subject suspects a GDPR violation regarding personal data relating to them; 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. [''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 GDPR|Article 57(3) GDPR]]). Many SAs provide forms that ensure that a complainant includes all relevant information as suggested in the last sentence of Recital 141 GDPR.


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.<ref>''Bergt'', in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 26 (Beck 2020, 3rd ed.) (accessed 22 April 2021).</ref>
=== (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.
Under [[Article 57 GDPR|Article 57(3) GDPR]], the lodging of a complaint and its handling by a DPA shall be free of charge for the data subject, which must be respected by the national procedural law.
 
Many DPAs 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 ===
==== 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. [''Bailey'', in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition)] 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. [''Bailey'', in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition)]


==== Requirements ====
==== Requirements ====
Article 77(1) GDPR only has two requirements: (1) A data subject must consider that (2) their personal data has been processed in violation of GDPR.
Article 77(1) GDPR has two requirements: (1) A data subject must consider that (2) their personal data has been processed in violation of GDPR.


===== Data Subject =====
===== Data Subject =====
The complainant must be a data subject within the meaning of [[Article 4 GDPR|Article 4(1) GDPR]], i.e. an identified or identifiable natural person.
The complainant must be a data subject within the meaning of [[Article 4 GDPR|Article 4(1) GDPR]], i.e. an identified or identifiable natural person. As only an investigation of the facts can determine if the data of the complainant has actually been processed, the complainant must ''de facto'' only allege that they qualify as a data subject. This is especially relevant in cases where the complainant is not even capable of assessing their status as a data subject – e.g. when a controller has simply ignored an access request under [[Article 15 GDPR]] and the complainant has no knowledge on whether the controller actually processes their personal data.
 
As only an investigation of the facts can determine if the data of the complainant has actually been processed, the complainant must de facto only allege that he or she qualifies as a data subject. This is especially relevant in cases where the complainant is not even capable of assessing their status as a data subject – e.g. when a controller has simply ignored an access request under [[Article 15 GDPR]] and the complainant has no knowledge on whether the controller actually processes their personal data.


===== Alleged Infringement =====
===== Alleged Infringement =====
The data subject must at least allege that their data is processed in violation of the GDPR.  
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,<ref>''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).</ref> 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''“).<ref>Datenschutzbehörde, 13 September 2018, das Bundesministerium für Europa, Integration und Äußeres, das Bundeskanzleramt, DSB-D123.070/0005-DSB/2018, (available [https://www.ris.bka.gv.at/Dokumente/Dsk/DSBT_20180913_DSB_D123_070_0005_DSB_2018_00/DSBT_20180913_DSB_D123_070_0005_DSB_2018_00.pdf here]).</ref> 


Contrary to the prevailing opinion among legal scholars,<ref>''Bergt'', in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 10 (Beck 2020, 3rd ed.) (accessed 22 April 2021); ''Nemitz'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 77 GDPR, margin number 16 (Beck 2018, 2nd ed.) (accessed 22 April 2021); ''von Lewinksi'' in Auernhammer, DSGVO BDSG, Article 77 GDPR, margin number 2 (Carl Heymanns 2018, 6nd ed.).</ref> some DPAs 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“)<ref>E.g. DSB, 13 September 2018, das Bundesministerium für Europa, Integration und Äußeres, das Bundeskanzleramt, DSB-D123.070/0005-DSB/2018, (available here<nowiki/>https://www.ris.bka.gv.at/Dokumente/Dsk/DSBT_20180913_DSB_D123_070_0005_DSB_2018_00/DSBT_20180913_DSB_D123_070_0005_DSB_2018_00.pdf).</ref>. The academic opinion seems more convincing for the following reasons:
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 [[Article 5 GDPR|Articles 5]] to [[Article 10 GDPR|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|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 GDPR|Article 5(1)(d) GDPR]] in conjunction with [[Article 24 GDPR|Articles 24]] and [[Article 25 GDPR|25 GDPR]] and ask the SA to order the controller to bring the processing operation into compliance with the GDPR under [[Article 58 GDPR|Article 58(2)(d) GDPR]] or even ban it under [[Article 58 GDPR|Article 58(2)(f)]] GDPR.


First, the language of Article 77(1) GDPR does not contain any limitations to violations of Chapter III rights.
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 ([[Article 6 GDPR|Articles 6]], [[Article 9 GDPR|9]] and [[Article 10 GDPR|10 GDPR]]), the conditions for consent ([[Article 7 GDPR|Articles 7]] and [[Article 8 GDPR|8 GDPR]]), information under [[Article 11 GDPR|Article 11(2) GDPR]], provisions of Chapter III of the GDPR ([[Article 12 GDPR|Articles 12]] to [[Article 22 GDPR|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 GDPR|Article 44]] et seq. GDPR).<ref>''Schweiger'' in Knyrim'','' DatKomm, Article 77 GDPR, margin number 11 (as of 22.4.2021, rdb.at).</ref>
 
Second, Article 8(2) 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 [[Article 5 GDPR|Article 5]] to [[Article 10 GDPR|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 DPA. 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|Article 16]] 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 GDPR|Article 5(1)(d) GDPR]] in connection with [[Article 24 GDPR|Article 24]] and [[Article 25 GDPR|25 GDPR]] and ask the DPA to order the controller to bring the processing operation into compliance with the GDPR under [[Article 58 GDPR|Article 58(2)(d) GDPR]] or even ban it under [[Article 58 GDPR|Article 58(2)(f)]] GDPR.
 
Therefore, complaints under Article 77 GDPR should extend to a broad range of violations concerning, amongst the others:<ref>See especially DatKomm/Schweiger GDPR Art. 77 margin number 11.</ref>
 
* the principles of data processing ([[Article 5 GDPR]]),
* the lawfulness of processing ([[Article 6 GDPR|Article 6]], [[Article 9 GDPR|9]] and [[Article 10 GDPR|10 GDPR]]),
* the conditions for consent ([[Article 7 GDPR|Article 7]] and [[Article 8 GDPR|8 GDPR]]),
* information under [[Article 11 GDPR|Article 11(2) GDPR]],
* provisions of Chapter III of the GDPR ([[Article 12 GDPR|Article 12]] to [[Article 22 GDPR|22 GDPR]]),
* the duty to communicate a personal data breach to the data subject ([[Article 34 GDPR]]),
* the provisions on data transfers to a third countries or international organisations under Chapter V of the GDPR ([[Article 44 GDPR|Article 44]] et seq. GDPR).


==== Jurisdiction for Filing the Case ====
==== Jurisdiction for Filing the Case ====


===== A(ny) DPA =====
===== A(ny) Supervisory Authority =====
The GDPR only requires that a supervisory authority (DPA) is addressed by the complaint. This general rule is only limited by a non-exhaustive list of possible DPAs. This means that a complainant may file a complaint with any DPA in the EEA, independent of location.<ref>Kühling/Buchner/Bergt GDPR Art. 77 margin number 9.</ref>
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.<ref>''Bergt'' in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 9 (Beck 2020, 3rd edition).</ref>


===== Habitual Residence =====
===== 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, at 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.  
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 =====
===== Place of Work =====
Similar to the habitual residence, complainants can lodge a complaint at their work place. It is not required that the complaint has any connection to the 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 =====
===== Place of Alleged Infringement =====
The complaint can be lodged at 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.<blockquote><u>Example:</u> The DPA that is close 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 DPAs.</blockquote>


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 =====
===== Cross Country Cases =====
The option to lodge a case with any DPA does not mean that the DPA with which the case has been lodged necessarily decides about the case. Which DPA actually handles the case is subject to [[Article 55 GDPR|Article 55]] and [[Article 56 GDPR|56 GDPR]]. In any case the DPA with which the complaint has been lodged remains a “supervisory authority concerned” under [[Article 4 GDPR|Article 4(22)(c) GDPR]] and the point of contact for the data subject (“one stop shop”).  
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 GDPR|Article 55]] and [[Article 56 GDPR|56 GDPR]]. In any case the SA with which the complaint has been lodged remains a “''supervisory authority concerned''” under [[Article 4 GDPR|Article 4(22)(c) GDPR]] and the point of contact for the data subject (“''one-stop shop''”).  


=== Duty to Inform the Data Subject ===
=== Duty to Inform the Data Subject ===


==== Progress and Outcome ====
==== Progress and Outcome ====
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 DPA with which the complaint has been lodged but not the DPA ultimately handling the case under [[Article 55 GDPR|Article 55]] and [[Article 56 GDPR|56 GDPR]] (which might be the same or a different DPA).
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 [[Article 55 GDPR|Articles 55]] and [[Article 56 GDPR|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 GDPR|Article 78(1) GDPR]] respectively.
 
The DPA’s report on the progress must include information on the possibility for a judicial remedy under [[Article 78 GDPR|Article 78(2) GDPR.]]Its report on the outcome should contain information on the possibility for a judicial remedy under [[Article 78 GDPR|Article 78(1) GDPR]].


==== Timeline and Frequency of Information ====
==== Timeline and Frequency of Information ====
Article 77(2) 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 connection with [[Article 57 GDPR|Article 57(1)(f)]] GDPR (“[…] inform the complainant of the progress and the outcome of the investigation within a reasonable period'','' […]”) , the DPA must inform the data subject within a reasonable period.
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 GDPR|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 GDPR|Article 78(2) GDPR]] a data subject has the right to an effective judicial remedy where the DPA which is competent pursuant to [[Article 55 GDPR|Article 55]] and [[Article 56 GDPR|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 GDPR|Article 78(2)]] does not address the DPA with which the complaint has been lodged but rather the DPA that is competent to handle the case under [[Article 55 GDPR|Article 55]] and [[Article 56 GDPR|56 GDPR]].


This results in the following scenarios:
Moreover, under [[Article 78 GDPR|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 GDPR|Article 55]] and [[Article 56 GDPR|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 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 [[Article 55 GDPR|Articles 55]] and [[Article 56 GDPR|56 GDPR]].


* The DPA with which the complaint has been lodged is also competent to handle the case under [[Article 55 GDPR]]. In this case, the DPA has to inform the data within three months after receipt of the complaint on its progress or outcome under [[Article 78 GDPR|Article 78(2) 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 GDPR|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 GDPR|Article 56]] is), then the SA with which the complaint has been lodged must inform the data subject under Article 77(2) GDPR.
* The DPA with which the complaint has been lodged is not competent to handle the case but rather the lead DPA under [[Article 56 GDPR|Article 56]] is:
** The DPA 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 GDPR|Article 78(2)]] GDPR should be applied ''per analogiam.''
** As soon as the lead DPA 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 GDPR|Article 78(2)]] GDPR. For practical reasons the DPA with which the complaint has been lodged usually informs the data subject on behalf of the lead DPA on this.


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 GDPR|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 GDPR|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 ==
== Decisions ==
→ You can find all related decisions in [[:Category:Article 77 GDPR]]
→ You can find all related decisions in [[:Category:Article 77 GDPR]]

Revision as of 08:46, 29 April 2022

Article 77 - Right to lodge a complaint with a supervisory authority
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text


Article 77 - Right to lodge a complaint with a supervisory authority

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

Recital 141: Right to Lodge a Complaint and Right to an Effective Judicial Remedy
Every data subject should have the right to lodge a complaint with a single supervisory authority, in particular in the Member State of his or her habitual residence, and the right to an effective judicial remedy in accordance with Article 47 of the Charter if the data subject considers that his or her rights under this Regulation are infringed or where the supervisory authority does not act on a complaint, partially or wholly rejects or dismisses a complaint or does not act where such action is necessary to protect the rights of the data subject. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The supervisory authority should inform the data subject of the progress and the outcome of the complaint within a reasonable period. If the case requires further investigation or coordination with another supervisory authority, intermediate information should be given to the data subject. In order to facilitate the submission of complaints, each supervisory authority should take measures such as providing a complaint submission form which can also be completed electronically, without excluding other means of communication.

Commentary

Article 77(1) GDPR stipulates the data subject’s right to lodge a complaint with a supervisory authority (“SA”) if the data subject suspects a GDPR violation regarding personal data relating to them; 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. [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). 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.

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. [Bailey, in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition)] 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. [Bailey, in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition)]

Requirements

Article 77(1) GDPR has two requirements: (1) A data subject must consider that (2) their personal data has been processed in violation of GDPR.

Data Subject

The complainant must be a data subject within the meaning of Article 4(1) GDPR, i.e. an identified or identifiable natural person. As only an investigation of the facts can determine if the data of the complainant has actually been processed, the complainant must de facto only allege that they qualify as a data subject. This is especially relevant in cases where the complainant is not even capable of assessing their status as a data subject – e.g. when a controller has simply ignored an access request under Article 15 GDPR and the complainant has no knowledge on whether the controller actually processes their personal data.

Alleged 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,[1] 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“).[2]

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).[3]

Jurisdiction for Filing the Case

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.[4]

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”).

Duty to Inform the Data Subject

Progress and Outcome

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.

Timeline and Frequency of Information

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

  1. 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).
  2. Datenschutzbehörde, 13 September 2018, das Bundesministerium für Europa, Integration und Äußeres, das Bundeskanzleramt, DSB-D123.070/0005-DSB/2018, (available here).
  3. Schweiger in Knyrim, DatKomm, Article 77 GDPR, margin number 11 (as of 22.4.2021, rdb.at).
  4. Bergt in Kühling, Buchner, DS-GVO BDSG, Article 77 GDPR, margin number 9 (Beck 2020, 3rd edition).