Article 81 GDPR

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Article 81 - Suspension of proceedings
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Chapter 10: Delegated and implementing acts

Legal Text

Article 81 - Suspension of proceedings

1. Where a competent court of a Member State has information on proceedings, concerning the same subject matter as regards processing by the same controller or processor, that are pending in a court in another Member State, it shall contact that court in the other Member State to confirm the existence of such proceedings.

2. Where proceedings concerning the same subject matter as regards processing of the same controller or processor are pending in a court in another Member State, any competent court other than the court first seized may suspend its proceedings.

3. Where those proceedings are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

Relevant Recitals

Recital 144: Lis Alibi Pendens
Where a court seized of proceedings against a decision by a supervisory authority has reason to believe that proceedings concerning the same processing, such as the same subject matter as regards processing by the same controller or processor, or the same cause of action, are brought before a competent court in another Member State, it should contact that court in order to confirm the existence of such related proceedings. If related proceedings are pending before a court in another Member State, any court other than the court first seized may stay its proceedings or may, on request of one of the parties, decline jurisdiction in favour of the court first seized if that court has jurisdiction over the proceedings in question and its law permits the consolidation of such related proceedings. Proceedings are deemed to be related where they are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Commentary

Article 81 GDPR stipulates rules for the coordination of courts of different Member States handling related proceedings in order to avoid contradictory decisions by different courts on the same subject matter.[1]

Article 81(1) GDPR puts the competent court under the obligation to contact courts in other Member States where the same subject matter is pending.

Article 81(2) GDPR allows for competent courts other than the court first seized to suspend parallel proceedings.

Article 81(3) GDPR stipulates when competent courts other than the court first seized may decline jurisdiction in case of parallel proceedings.

Article 81 GDPR addresses the courts but not the DPAs of the Member States. There are different opinions among legal scholars as to which court proceedings Article 81 GDPR applies too. Some argue that Article 81 GDPR applies only to proceedings under Article 78 GDPR, because Recital 144 sentence 1 only mentions the situation to where “a court seized of proceedings against a decision by a supervisory authority”, but does not mention proceedings against a controller or processor (which are subject to Article 79 GDPR).[2] However, the prevailing opinion among legal scholars is that it Article 81 GDPR applies to proceedings under both Article 78 and 79 GDPR since, (i) the wording of Article 81 GDPR is not limited to either proceedings under Article 78 or 79 GDPR, (ii) the purpose of Article 81 GDPR is to avoid contradictory decisions and (iii) Recital 144 GDPR is of no normative nature and hence cannot limit the scope of GDPR provision.[3] As a result, Article 81 GDPR applies to both courts handling proceedings against DPAs under Article 78(1) and (2) GDPR and courts handling proceedings against controllers or processors against Article 79(1) GDPR. In Member States that have a separation between administrative and civil courts (e.g. France, Germany, Italy or Austria) this means that both strains of courts are subject to Article 81 GDPR.

(1) Communication Regarding Parallel Proceeding

Obligation to contact court in other Member State

Article 81(1) GDPR addresses only courts that are competent under Article 78(3), Article 79(2) or Article 82(6) in connection with Article 79(2) GDPR[4] and that are aware of (possible) proceeding concerning the same subject matter pending in a court of another Member State.[5] The competent court is under no obligation to conduct proactive research if such proceedings exist – in most cases, one or both parties will notify the court of pending parallel proceedings.[6] Once the competent court is aware of such proceedings or has reason to believe that such proceedings exist,[7] it has to contact the court in the other Member State to confirm the existence of such proceedings. The court has no discretionary power in this respect (“shall contact”).[8]

Same subject matter

The question of whether the same subject matter is pending before another court is not entirely clear.The GDPR contains no definition of this term. According to Recital 144 sentence 3 GDPR, “proceedings are deemed to be related where they are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.” In light of this, some scholars argue that the purpose of the proceedings, the facts and circumstances and the alleged GDPR infringements must be identical to assume that procedures concern the same subject matter.[9] However, as Article 81(1) GDPR speaks of “processing by the same controller or processor”,  other scholars – we believe, more convincingly – argue that the decisive factor in determining whether a proceeding concerns the same subject matter is the processing activity under Article 4(2) GDPR.[10] It is not required that all parties of the proceedings are identical – it is necessary that the same controller or processor conduct the processing but not that it concerns the same data subject(s).[11]

(2) Authorisation to Suspend Proceedings

If the requirements of Article 81(1) GDPR are fulfilled (meaning proceedings concerning the same subject matter as regards processing by the same controller or processor are pending in a court in another Member State) any competent court other than the court first seized may suspend its proceedings. Again, this only addresses competent courts (Article 78(3), Article 79(2) or Article 82(6) in connection with Article 79(2) GDPR).

The court is under no strict obligation to suspend the proceeding but rather has discretionary power.[12] When assessing the necessity for suspension, the court must take into account Article 47 CFR and avoid overly long proceedings due to suspension[13] and possible requests for the CJEU’s preliminary ruling by the court first seized.[14] It is not necessary that a party requests the suspension; the court decides on the suspension on its own volition (contrary to Article 81(3) GDPR, Article 81(2) GDPR does not contain the requirement “on the application of one of the parties”) but should take into account the parties wishes/requests in its assessment.[15]

(3) Authorisation to Decline Jurisdiction

Article 81(3) GDPR again addresses any competent court, other than the court first seized. The court subsequently called upon may also (meaning “instead of or in addition to suspending the proceedings under Article 81(2) GDPR”) decline jurisdiction if

(i) one of the parties (or both parties) requested this and

(ii) the proceedings are pending at first instance (meaning proceedings on the same subject matter, as referred to in Article 81(2) GDPR) and

(iii) the court first seized has jurisdiction over the actions in question (meaning also over the action filed with the court subsequently called upon) and

(iv) the Member State law applicable on the proceedings pending in the court first seized permits the consolidation of the actions in question.

The fulfilment of requirement (iv) is a question of Member State law. As not all Member States might provide for consolidation of legal actions pending in different Member States this requirement substantially narrows the scope of applicability of Article 81(3) GDPR.[16] Furthermore, it remains unclear how the court subsequently called upon is supposed to assess with sufficient legal certainty if requirements (iii) and (iv) are fulfilled regarding the court first seized.[17] From a practical viewpoint, this requires certain communication and coordination between courts in different Member States.

Like the suspension under Article 81(2) GDPR, the decision on declining jurisdiction under Article 81(3) GDPR is subject to the court’s discretionary power.[18]

Decisions

→ You can find all related decisions in Category:Article 81 GDPR

References

  1. See Recital 144 GDPR sentence 3.
  2. Feiler, Forgó, EU-DSGVO, Article 81 GDPR, margin number 1 (Verlag Österreich 2017); also see Feldmann in Gierschmann, Schlender, Stentzel, Veil, Article 81 GDPR, margin number 10 (Bundesanzeiger Verlag 2017).
  3. E.g. Mundil in Wolff/Brink, BeckOK DatenschutzR, Article 81 GDPR, margin number 8 (Beck 2021, 36th ed.) (accessed 19.07.2021); Boehm in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 81 GDPR, margin number 18 (beck-online.de 2019) (accessed 19.07.2021); Kreße in Sydow, Europäische Datenschutzgrundverordnung, Article 81 GDPR, margin number 1 (Nomos 2018, 2nd ed.) (accessed 19.07.2021); Nolte, Werkmeister in Gola, DS-GVO, Article 81 GDPR, margin number 2 (Beck2018, 2nd ed.) (accessed 20.07.2021); Jahnel  in Jahnel, DSGVO, Article 81 GDPR, margin number 2 (Jan Sramek 2021); see also Schweiger in Knyrim, Der Datkomm, Article 81 GDPR, margin number 7, 8 (rdb.at 2019) (accessed 19.07.2021) also argues that Article 81(3) GDPR who argues that the wording “proceedings pending at first instance” indicates that proceedings under Article 79 GDPR are encompassed, as proceedings under Article 78 GDPR could not be considered “first instance” (as the court is deciding on the decision of a DPA or its inactivity).
  4. Kreße in Sydow, Europäische Datenschutzgrundverordnung, Article 81 GDPR, margin number 13 (Nomos 2018, 2nd ed.) (accessed 19.07.2021).
  5. If the same subject matter is pending in another court of the same Member State, Article 82 GDPR does not apply and the conflict is to be resolved under national law. See Jahnel in Jahnel, DSGVO, Article 81 GDPR, margin number 3 (Jan Sramek 2021).
  6. Bergt in Kühling, Buchner, DS-GVO BDSG, Article 81 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 19.07.2021).
  7. See Recital 144 sentence 1 GDPR: “[…] has reason to believe that […] ”.
  8. Schweiger in Knyrim, Der Datkomm, Article 81 GDPR, margin number 11 (rdb.at 2019) (accessed 20.07.2021); sceptical Feldmann in Gierschmann, Schlender, Stentzel, Veil, Article 81 GDPR, margin number 15 (Bundesanzeiger Verlag 2017).
  9. Schweiger in Knyrim, Der Datkomm, Article 81 GDPR, margin number 16 (rdb.at 2019) (accessed 19.07.2021); Jahnel in Jahnel, DSGVO, Article 81 GDPR, margin number 5 (Jan Sramek 2021); similar also Nolte, Werkmeister in Gola, DS-GVO, Article 81 GDPR, margin number 2 (Beck2018, 2nd ed.) (accessed 20.07.2021).
  10. Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 81 GDPR margin number 9 (Deutscher Fachverlag 2019, 3rd ed.) (accessed 20.07.2021); Feldmann in Gierschmann, Schlender, Stentzel, Veil, Article 81 GDPR, margin number 12 (Bundesanzeiger Verlag 2017).
  11. Bergt in Kühling, Buchner, DS-GVO BDSG, Article 81 GDPR, margin number 9 (Beck 2020, 3rd ed.) (accessed 19.07.2021) Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 81 GDPR margin number 10 (Deutscher Fachverlag 2019, 3rd ed.) (accessed 20.07.2021); by contrast Kreße in Sydow, Europäische Datenschutzgrundverordnung, Article 81 GDPR, margin number 11,12 (Nomos 2018, 2nd ed.) (accessed 20.07.2021) and Frenzel in Paal, Pauly, Datenschutz-Grundverordnung Bundesdatenschutzgesetz, Article 81 GDPR, margin number 13 (Beck 2021, 3th ed.) (accessed 19.07.2021) are of the opinion that also the data subject(s) must be identical.
  12. Boehm in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 81 GDPR, margin number 35 (beck-online.de 2019) (accessed 19.07.2021).
  13. Boehm in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 81 GDPR, margin number 35 (beck-online.de 2019) (accessed 19.07.2021).
  14. Mundil in Wolff/Brink, BeckOK DatenschutzR, Article 81 GDPR, margin number 10 (Beck 2021, 36th ed.) (accessed 20.07.2021).
  15. Ibid.
  16. See Mundil in Wolff/Brink, BeckOK DatenschutzR, Article 81 GDPR, margin number 11 (Beck 2021, 36th ed.) (accessed 20.07.2021).
  17. Moos, Schefzig in Taeger, Gabel, DSGVO – BDSG, Article 81 GDPR margin number 23 (Deutscher Fachverlag 2019, 3rd ed.) (accessed 20.07.2021).
  18. Nemitz in Ehmann, Selmayr, DS-GVO, Article 81 GDPR, margin number 8 (Beck 2018, 2nd ed.) (accessed 20.07.2021); also see Kreße in Sydow, Europäische Datenschutzgrundverordnung, Article 81 GDPR, margin number 22 (Nomos 2018, 2nd ed.) (accessed 20.07.2021).