KG Berlin - 3 Ws 250/21 - 161 AR 64/21

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KG Berlin - 3 Ws 250/21 - 161 AR 64/21
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Court: KG Berlin (Germany)
Jurisdiction: Germany
Relevant Law: Article 83 GDPR
Article 83(4) GDPR
Article 83(5) GDPR
Article 83(6) GDPR
Article 101 TFEU
Article 102 TFEU
Article 23 Council Regulation (EC) No 1/2003 of 16 December 2002
§ 30 OWiG
§ 41 BDSG
Decided:
Published: 06.12.2021
Parties: BlnBDI
Deutsche Wohnen SE
National Case Number/Name: 3 Ws 250/21 - 161 AR 64/21
European Case Law Identifier: ECLI:EN:KG:2021:1206:3WS250:21:00
Appeal from: LG Berlin
(526 OWi LG) 212 Js-OWi 1/20 (1/20), 526 OWiG LG 1/20
Appeal to: Unknown
Original Language(s): German
Original Source: Berliner Vorschriften- und Rechtsprechungsdatenbank (in German)
Initial Contributor: Giel Ritzen

The KG Berlin suspended proceedings and referred two preliminary questions to the CJEU, for more understanding regarding the interpretation of Article 83 GDPR in relation to legal entities.

English Summary

Facts

On 30/10/2019, the Berlin DPA fined Deutsche Wohnen SE € 14,500,000 for violating Article 5(1)(e) and Article 25(1) GDPR as the company's archive system was structurally unable to delete unnecessary data (https://gdprhub.eu/index.php?title=BlnBDI_-_Deutsche_Wohnen_SE_decision). Deutsche Wohnen did not agree and brought the action before court. On 18/02/2021, the Regional Court Berlin overturned the DPA’s decision because it held that a legal entity cannot be the subject of a fine procedure pursuant to Article 83 GDPR. According to the Court, only a natural person could commit an administrative offence in a reproachable way, while the legal entity just could be a secondary party, to which the actions of its representatives or board members are attributable. Since there was no proof of the personal responsibility of a representative or board member, the Court held that Deutsche Wohnen could not be fined.

The Berlin DPA appealed to this decision.

Holding

The KG Berlin decided to suspend proceedings and referred the following preliminary questions to the CJEU:

(1) Is Article 83(4) to (6) of the GDPR to be interpreted as incorporating into national law the functional concept of undertaking and the functionary principle associated with Articles 101 and 102 TFEU, with the consequence that, by extending the principle of legal entity on which Paragraph 30 of the OWiG is based, a fine procedure may be conducted directly against an undertaking and the penalty is not imposed on the determination of a person identified by a natural and identified person: if applicable, a fully tort, committed administrative offence is required?

(2) If the answer to Question (1) is in the affirmative, must Article 83(4) and Article 83(6) GDPR be interpreted as meaning that the undertaking must have culpably committed the infringement mediated by an employee (see Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 implementing the rules on competition laid down in Articles 81 and 82 of the Treaty), or is an objective breach of duty attributable to the company ("strict liability") already sufficient in principle for a fine of the company?

Comment

Regarding the liability regime, the Court discussed the contradiction between the limited liability regime under national law, and the view as expressed in LG Bonn 29 OWi 1/20 (https://gdprhub.eu/index.php?title=LG_Bonn_-_29_OWi_1/20). In this case, the LG Bonn held that Article 83 GDPR, with a rule of direct association liability, supersedes the traditional national regime of attribution of the actions of directors only with legal consequences. Moreover, the majority of legal scholars share the opinion of the Court (See KG Berlin 3. Senat für Bußgeldsachen - 3 Ws 250/21 - 161 AR 64/21, para 9 for the full list).

In short, due to the primacy of EU Law, as well as the GDPR being a regulation and the supranational principles of corporate sanctioning prescribed by Article 83 GDPR, the traditional national principles are not to be followed if this weakens the level of data protection laid down by the GDPR. For more details, see KG Berlin 3. Senat für Bußgeldsachen - 3 Ws 250/21 - 161 AR 64/21, paras 12-25, or https://gdprhub.eu/index.php?title=LG_Bonn_-_29_OWi_1/20.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

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