Article 80 GDPR: Difference between revisions

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== Abstract complaints and lawsuits where provided for by Member State law ==
== 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.
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 82 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<ref>See ''Moos, Schefzig'' in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR, margin number 22 (Deutscher Fachverlag 2019, 3rd (accessed 09.07.2021).; ''Boehm'' in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin numbers 14, 15 (Beck 2019) (accessed 09.07.2021); ); ''Kreße'' in Sydow, Europäische Datenschutzverordnung, Artikel 80 GDPR, margin number 13 (Nomos 2018, 2nd ed.) (accessed 09.07.2021); Frenzel in Paal, Pauly, Datenschutz-Grundverordnung Bundesdatenschutzgesetz, Article 80 GDPR, margin number 11 (Beck 2021, 3th ed.) (accessed 09.07.2021).</ref> (see [https://gdprhub.eu/index.php?title=Article_77_GDPR#Alleged_infringement commentary on Article 77 GDPR “Alleged Infringement”] and [https://gdprhub.eu/index.php?title=Article_79_GDPR#Processing_in_non-compliance_with_the_GDPR_and_infringement_of_the_plaintiff.E2.80.99s_rights_under_the_GDPR 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.<ref>''Boehm'' in Simitis, Hornung/Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin numbers 13, 15 (Beck 2019) (accessed 09.07.2021).</ref>
 
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<ref>See ''Moos, Schefzig'' in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR, margin number 22 (Deutscher Fachverlag 2019, 3rd (accessed 09.07.2021).; ''Boehm'' in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin numbers 14, 15 (Beck 2019) (accessed 09.07.2021); ); ''Kreße'' in Sydow, Europäische Datenschutzverordnung, Artikel 80 GDPR, margin number 13 (Nomos 2018, 2nd ed.) (accessed 09.07.2021); Frenzel in Paal, Pauly, Datenschutz-Grundverordnung Bundesdatenschutzgesetz, Article 80 GDPR, margin number 11 (Beck 2021, 3th ed.) (accessed 09.07.2021).</ref> (see [https://gdprhub.eu/index.php?title=Article_77_GDPR#Alleged_infringement commentary on Article 77 GDPR “Alleged Infringement”] and [https://gdprhub.eu/index.php?title=Article_79_GDPR#Processing_in_non-compliance_with_the_GDPR_and_infringement_of_the_plaintiff.E2.80.99s_rights_under_the_GDPR 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.<ref>''Boehm'' in Simitis, Hornung/Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin numbers 13, 15 (Beck 2019) (accessed 09.07.2021).</ref>


== Decisions ==
== Decisions ==

Revision as of 11:27, 12 July 2021

Article 80 - Representation of data subjects
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Chapter 10: Delegated and implementing acts

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 of data subjects to mandate a not-for-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.[1] 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).[2]

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.[3] This includes for example consumer protection organisations,[4] workers unions or chambers of labour but excludes entities pursuing commercial interests.[5]

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.[6]
  • 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.[7] 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.[8] 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.[9]

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.[10] 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[11] foresees that qualified non-profit entities[12] 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[13] (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.[14]

Decisions

→ You can find all related decisions in Category:Article 80 GDPR

References

  1. Karg in Wolff, Brink, BeckOK DatenschutzR, Article 80 GDPR, margin number 10 (Beck 2021, 36th ed.) (accessed 09.07.2021).
  2. Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR margin number 7 (Deutscher Fachverlag 2019, 3rd ed.) (accessed 09.07.2021).
  3. Karg in Wolff, Brink, BeckOK DatenschutzR, Article 80 GDPR, margin number 11 (Beck 2021, 36th ed.) (accessed 09.07.2021); Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR margin number 10 (Deutscher Fachverlag 2019, 3rd ed.) (accessed 09.07.2021.
  4. See the Austrian Supreme Court’s request for the CJEU’s preliminary ruling regarding the legal relationship between Article 80 GDPR and national law granting consumer protection organisations the power to bring abstract lawsuits.
  5. See Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR, margin number 6 (Deutscher Fachverlag 2019, 3rd (accessed 09.07.2021).
  6. The wording of Article 80(1) GDPR differentiates between “lodging a complaint on behalf of the data subject” and “exercising the right referred to in Article 77 GDPR”. As the right to lodge a complaint is the only right exercisable under Article 77 GDPR, this differentiation is redundant; see Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR, margin number 12 (Deutscher Fachverlag 2019, 3rd ed.) (accessed 09.07.2021).
  7. See for example Fuster in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 80 GDPR, p. 1148 (Oxford University Press 2020); Kreße in Sydow, Europäische Datenschutzverordnung, Artikel 80 GDPR, margin number 11 (Nomos 2018, 2nd ed.) (accessed 09.07.2021); Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR, margin number 13 (Deutscher Fachverlag 2019, 3rd (accessed 09.07.2021); Werkmeister in Gola, Datenschutz-Grundverordnung, Artikel 80 GDPR, margin number 9 (Beck 2018, 2nd ed.) (accessed 09.07.2021); the only German legal scholars disagreeing seem to be Nemitz in Ehmann, Selmayr, DS-GVO, Article 80 GDPR, margin number 9 (Beck 2018, 2nd ed.) (accessed 09.07.2021) and Karg in Wolff, Brink, BeckOK DatenschutzR, Article 80 GDPR, margin number 8 (Beck 2021, 36th ed.) (accessed 09.07.2021), who take the view that Article 80(1) GDPR shall apply only if and to the extent that Member State law provides that natural persons may be represented by organisations.
  8. „[…] 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.”.
  9. Boehm in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin number 5 (Beck 2019) (accessed 09.07.2021); Bergt in Kühling, Buchner, DS-GVO BDSG, Artikel 80 GDPR, margin number 4 (Beck 2020, 3rd ed.) (accessed 09.07.2021).
  10. Boehm in Simitis. Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin number 11 (Beck 2019) (accessed 09.07.2021).
  11. Directive (EU) of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC.
  12. See Articles 3(4) and 4 of the Collective Redress Directive.
  13. See Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 80 GDPR, margin number 22 (Deutscher Fachverlag 2019, 3rd (accessed 09.07.2021).; Boehm in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin numbers 14, 15 (Beck 2019) (accessed 09.07.2021); ); Kreße in Sydow, Europäische Datenschutzverordnung, Artikel 80 GDPR, margin number 13 (Nomos 2018, 2nd ed.) (accessed 09.07.2021); Frenzel in Paal, Pauly, Datenschutz-Grundverordnung Bundesdatenschutzgesetz, Article 80 GDPR, margin number 11 (Beck 2021, 3th ed.) (accessed 09.07.2021).
  14. Boehm in Simitis, Hornung/Spiecker gen. Döhmann, Datenschutzrecht, Article 80 GDPR, margin numbers 13, 15 (Beck 2019) (accessed 09.07.2021).