NS - 30 Cdo 3909/2023-174: Difference between revisions

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NS - 30 Cdo 3909/2023-174

Court:	NS (Czech Republic)
Jurisdiction:	Czech Republic
Relevant Law:	Article 85 GDPR Article 15 Directive 2002/58/EC § 97(3) Electronic Communications Act (CZ) Act No. 82/1998 Coll
Decided:	27.03.2024
Published:	10.04.2024
Parties:	Ministry of Industry and Trade of the Czech Republic
National Case Number/Name:	30 Cdo 3909/2023-174
European Case Law Identifier:
Appeal from:	Obvodní soud pro Prahu 1 31 C 22/2021
Appeal to:	Appealed - Overturned Městsky soud v Praze 54 Co 134/2023-143
Original Language(s):	Czech
Original Source:	NS (in Czech)
Initial Contributor:	im

The Supreme Court indicated that Czech law governing data retention might infringe the right to privacy and data protection due to an improper transposition of the e-Privacy Directive. Czech law currently allows for a data retention period of 6 months.

English Summary

Facts

A journalist (‘data subject’) demanded an apology in relation to himself and to the citizens of the Czech Republic (‘CZ’) from the Ministry of Industry and Trade of the CZ (‘controller’) as a compensation for the non-material damages suffered as a result of the incorrect transposition of Directive 2002/58 of the European Parliament and of the Council /EC of 12 July 2002 on the processing of personal data and the protection of privacy in the electronic communications sector (‘e-Privacy Directive’ or ‘Directive’).

According to the Czech law transposing the Directive, operators of electronic communications and public networks must store a variety of user communication information for six months, primarily to aid in the investigation of criminal and misdemeanor activates. The incorrect transposition of the Directive allegedly led to the widespread collection and processing of operation and location data of users' the electronic communications.

In this case, the data subject saw an interference with his rights to privacy and informational self-determination. Before filing the lawsuit, the data subject tried unsuccessfully to obtain the erasure of data stored on him through a mobile operator and later through the Czech DPA.

The DPA stated that, in their opinion, it is indisputable that the national legislation issue (§ 97 paragraph 3 of Act No. 127/2005 Coll.) is not in accordance with Article 15 ePrivacy Directive. According to the Directive, Member States may enact laws to limit certain rights outlined in the Directive, including data retention, if it is necessary for national security, defense, public safety, or crime prevention, in line with EU principles. However, the complaint was rejected by the DPA.

Nevertheless, the data subject brought the DPA's opinion to the controller's attention who rejected it claiming that this transposition of the Directive cannot be considered as 'improper official procedure' according to Act No. 82/1998 Coll., on liability for damage caused in the exercise of public authority.

The data subject filed a lawsuit at the District Court of Prague 1 which rejected the request of the data subject for an apology. It concluded that the alleged damage caused by contradiction of national legislation and EU law is only a ‘potential damage not eligible for the legal protection’. The court added that the data subject was not entitled to file a lawsuit which concerns compensation for non-material damage to all citizens.

The data subject filed an appeal against this decision. the Municipal Court in Prague confirmed the first instance decision.

Finally, the data subject filed another appeal at the Supreme Court to resolve the questions on:

state responsibility for erroneous transposition of e-Privacy Directive
the question of the occurrence of non-material damage.

Holding

To begin with, the Supreme Court confirmed the decision of the court of first instance on the part regarding the lack of legal standing for seeking protection of the public interest. Such protection is not afforded by civil law and a person cannot claim damages for people that are not taking part in the procedure.

Regarding the state responsibility for the legislative activity, the Supreme Court referred to the joint cases C-46/93 and C-48/93, Brasserie du pêcheur SA, Factortame Ltd and others. The CJEU confirmed that a violation of directly effective standards thus results in state liability for damage. Consequently, Act No. 82/1998 Coll. shall be applied reasonably only where its rules are consistent with those of EU law or cover issues not addressed by EU law and as long as it does not hinder the individual’s rights to seek compensation for damages.

The Supreme Court, therefore, recalled three conditions for the state to be liable for a violation of EU law, namely:

the violated rule of EU law grants rights to the injured parties
the violation of this rule is sufficiently serious
there is a direct causal link between this violation and the damage suffered by the injured parties

In relation to the damage suffered, the Supreme Court concluded that the harm to data subjects may consist of a mere "loss of control" over their own data. This is the case even if there was no actual misuse of the data in question to the detriment of said persons.

Thus, if a data subject seeking damages on this basis argues that he fears that his personal data will be misused in the future as a result of such a breach, the national court to which the case was brought must verify that this fear may be justified.

Regarding the data retention period, the Supreme Court said that practice of the Czech law has been consistently ruled illegal by the Court of Justice of the EU (e.g. C-293/12 and C-594/12, Digital Rights Ireland Ltd, C-203/15 and C-698/15, Tele2 Sverige). It concluded that EU law prevents such legislative measures which, for the purpose of combating serious criminal activity and preventing a serious threat to public security, preemptively provide for widespread and indiscriminate storage of operational and location data.

According to the CJEU, extensive storage of operational and location data is only allowed when there is a serious threat to national security. The storage order should only last as long as absolutely needed, with the chance of extending it and reviewed by a court or independent body.

The Supreme Court thus indicated that the Czech legal regime governing data retention might infringe on the right to privacy and personal data protection, directing lower courts to further examine this issue.

The decisions of the lower courts will indicate whether retention of traffic and location data may be shortened in the CZ. In the event that the courts conclude in subsequent proceedings that the national regulation in question does not comply with the conditions of the Directive as interpreted by the CJEU, it will be necessary to examine, in accordance with the decision of the CJEU in the case of Brasserie du pêcheur SA, Factortame Ltd and others, whether this violation was sufficiently serious to consider the CZ liable for violation of EU law.

Comment

It can be assumed that the Supreme Court has invited lower courts to assess the situation in the specific cases and not apply national law where needed.

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English Machine Translation of the Decision

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

Posted on: 10/04/2024
Posted on: 4/25/2024
30 Cdo 3909/2023-174

CZECH REPUBLIC

JUDGMENT

IN THE NAME OF THE REPUBLIC

The Supreme Court decided in the senate composed of the president of the senate JUDr. David Vláčil
and judges Mgr. Vít Bičák and JUDr. Hany Polášková Wincorová, in the legal matter of the plaintiff Jan
Cibulky, apartment in Prague 5, Běhounkova 2527, represented by Mgr. et Mgr. Jan Vobořil,
attorney, with registered office in Prague 7, U smaltovny 1115/32, against the defendant Czech Republic –
Ministry of Industry and Trade, personal identification number 47609109, registered office in Prague 1,
On Františka 1039/32, on compensation for non-property damage, held at the Circuit Court

for Prague 1 under sp. No. 31 C 22/2021, on the plaintiff's appeal against the judgment of the Municipal Court
in Prague dated 13 June 2023, No. 54 Co 134/2023-143, as follows:

I. Judgment of the Municipal Court in Prague dated 13 June 2023, no.
54 Co 134/2023-143, in that part of statement I which confirms statements I and III

judgment of the court of first instance, and in the cost statement II, as well as the judgment

of the District Court for Prague 1 of 8 February 2023, No. 31 C 22/2021-116,
in statements I and III, are canceled and the matter is returned to the District Court for Prague 1

for further proceedings.

II. To the remaining extent, the plaintiff's appeal is rejected.

Justification:
I. Current course of proceedings

1. With the filed lawsuit, the plaintiff demanded from the defendant, on the one hand, in relation to his person,
on the one hand, to the "citizens" [apparently of the Czech Republic], apologies as satisfaction
for non-pecuniary damage that he (and the citizens of the Czech Republic) has caused wrongfully
implementation of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 on the processing of personal data and the protection of privacy in the electronic communications industry (hereinafter
also "Directive on Privacy and Electronic Communications" or "Directive 2002/58"). Just
incorrect implementation done against this directive has resulted in widespread
collection and further processing of operational and location data about electronic
communication of users of electronic communications services. In this gathering the plaintiff

he saw an interference with his rights to privacy and informational self-determination.
2. Before filing the lawsuit, the plaintiff tried unsuccessfully to achieve deletions (removal)
data stored on his person first through the mobile operator, then

through the Office for the Protection of Personal Data (hereinafter "ÚOOÚ"), which in its statement
dated 9/3/2021 replied to the plaintiff that, in his opinion: "it is indisputable that the national regulation
of the issues contained in § 97 paragraph 3 of Act No. 127/2005 Coll., on electronic
communications, is not in accordance with the interpretation of Article 15, paragraph 1 of the directive of the European Parliament
and Council 2002/58/EC (…). The contradiction is so fundamental that it cannot be bridged by Euro-conformity
interpretation". The plaintiff then preliminarily asserted his claim with the defendant, which request
about satisfaction, she refused, referring to the fact that standard-setting activity cannot be evaluated as

incorrect official procedure in the sense of § 13 of Act No. 82/1998 Coll., on liability for damage
caused by a decision or improper official procedure in the exercise of public authority
and on amending Act of the Czech National Council No. 358/1992 Coll., on notaries and their activities (notary
order), as amended (hereinafter "OdpŠk" or "Act No. 82/1998 Coll."). For creation
the state's responsibility, according to the plaintiff, the basic assumption, which is
existence of maladministration.

3. The district court for Prague 1 (hereinafter "the court of first instance") made its decision on the claim
by the judgment of 8 February 2023, no. 31 C 22/2021-116, by rejecting the request for determination
the defendant's obligation to send an apology in the following wording to the plaintiff by mailbox: "Czech
Republic apologizes to you through the Ministry of Industry and Trade for the fact that

by the adoption of legislation imposing on providers of electronic communications services according to
§ 97 paragraphs 3 and 4 of the Act on Electronic Communications to store operational and location data
data on your electronic communication has violated and continues to violate the provisions of Article 15, paragraph 1
Privacy and Electronic Communications Directive. This constitutes an unauthorized intervention
to your personal rights" (sentence I), also rejected the claim to impose an obligation on the defendant
publish on its website www.mpo.cz in the News section for at least
30 days apology with the following wording: "The Czech Republic through the Ministry

industry and trade apologizes to citizens for the adoption of legislation imposing
providers of electronic communications services according to Section 97, paragraphs 3 and 4 of the Act
about electronic communications to store operational and location data about your electronic
communication violated and continues to violate the provisions of Article 15, paragraph 1 of the Privacy Directive
and electronic communications. This leads to an unauthorized intervention in their personalities
rights" (sentence II) and finally imposed on the plaintiff the obligation to compensate the defendant for the costs of the proceedings (sentence
III).

4. The court of first instance concluded that the damage that should have been sued through
contested contradictions of national legislation on the one hand and EU law on the other
caused by the plaintiff is only potential damage that is not eligible for legal protection

provided by the provisions of § 81 paragraph 1 and § 2956 of Act No. 89/2012 Coll., Civil Code
(hereinafter "o. z."). The plaintiff, despite the court's request, did not claim, much less prove, a specific occurrence
damages due to the fact that the mobile operator keeps for a certain period of time the operational and localization
data relating to the claimant. According to the court of first instance, the plaintiff's motion resembles an actio
popularis, by which, rather than the protection of one's personal rights, one seeks the protection of the public
interest and to which the civil law protection of the person's personality and his natural rights
does not provide

2 30 Cdo 3909/2023

5. The plaintiff filed an appeal against this decision, in which he objected that by interfering with his
of fundamental rights was already the very retention of data, regardless of whether it occurred
misuse. The plaintiff found the court's conclusion about the potential for harm all the more surprising because in the course of
proceedings before the court of first instance was the focus of his activity in asserting and proving precisely
of this fact, including in relation to his work as an investigative journalist, civic activities

and publishing activities. In their summary, these rather deepen the negative impact
inactivity of the defendant to the personal rights of the plaintiff. According to the plaintiff, the court of first instance also
completely resigned from assessing the conformity of national regulation with generally binding European ones
regulations, while in this direction he ignored the decision-making practice of the Court of Justice of the European Union
(hereinafter referred to as the "CJEU" or the "Court of Justice"). Due to the alleged inconsistency between the Czech and the EU
legislation was proposed by the plaintiff so that the Court of Appeal (if needed) complies
with Article 267 of the Treaty on the Functioning of the European Union (hereinafter also referred to as "TFEU") appealed to the Court of Justice

within the framework of the preliminary question procedure. Finally, he criticized the first-instance court for an omission
of evidence in the proceedings, both the omission of the evidence presented in the justification of the decision and
non-implementation of the evidence proposed by him without any justification.

6. The Municipal Court in Prague (hereinafter the "Appeal Court") decided on the appeal filed by the plaintiff
by its judgment of 13 June 2023, No. 54 Co 134/2023-143 (hereinafter the "contested decision"),
so that the judgment of the court of first instance was confirmed (sentence I of the judgment of the appellate court) and imposed
the plaintiff to compensate the defendant for the costs of the appellate proceedings (sentence II of the judgment of the appellate court).

7. In the justification of the contested judgment, the Court of Appeal stated that it was not involved in the case under consideration
fulfilled the first of the prerequisites for the state's liability for damage, since in the defendant's procedure
improper official procedure cannot be seen. According to the Court of Appeal, "the issuance of the law is indeed
by the exercise of public power, but it is the result of the norm-making activity of the state, which cannot be
considered as an incorrect official procedure, and therefore no responsibility for damage can be attributed.
Article 36 paragraph 3 of the Charter of Fundamental Rights and Freedoms (proclaimed as part of the constitutional

of Order No. 2/1993 Coll., hereinafter referred to as the "Document") does not establish the right to compensation for damage caused
by the exercise of the legislative power of the Parliament. If the legislator oversteps his bounds, he can
The Constitutional Court to intervene and annul the law or pronounce it unconstitutional. That's in this
it did not happen in a specific case." According to the Court of Appeal, the plaintiff also went beyond the general scope
the claim of a long-term burdensome feeling of unauthorized interference with his personal rights
he did not claim or prove anything about the specific way and intensity of this
the violation of rights manifested itself in his personal sphere in such a way that it could be inferred to have occurred

non-property damages. The claim that as an investigative journalist he must protect his sources is according to
of the Court of Appeal with a purely general statement. Regarding the apology to the citizens of the Czech Republic,
the appellate court concluded that the plaintiff did not have standing to file an action that should concern
compensation for non-pecuniary damage to all citizens.

II. Appeal

8. Against the challenged decision, the plaintiff (hereinafter referred to as the "appellant") appealed to both
of his statements, the admissibility of which he bases on the fact that it depends on the resolution of material issues
and procedural law, which have not yet been resolved in the decision of the Court of Appeal (question
the occurrence of non-material damage) or were resolved differently by the appeals court (problem
maladministration and state liability for maladministration in the case

incorrect implementation of European regulations).
9. In relation to objections relating to maladministration
through the rule-making activity of the state, the appellant primarily objects that the procedure of the appellant

court is unreviewable, as it completely ignored the appellant's argumentation, which was
contained in the lawsuit, as well as in subsequent statements. Although for malpractice

3 does not normally consider the legislative activity of the state, this rule does not apply in the field of law
European, when in the event of its violation, the state is responsible for the damage caused by wrong
transposition of European law into the national legal system. In this context it refers
on the decision of the Constitutional Court of 9 February 2011, file no. stamp IV. ÚS 1521/10, judgment of the Supreme
court of 20 August 2012, file no. stamp 28 Cdo 2927/2010, and the judgment of the CJEU dated 19 November 1991

in joined cases C-6/90 and C-9/90, Francovich and Bonifaci v Italian Republic.
10. As regards the resulting non-pecuniary damage, the appellant emphasizes that the court of first instance,
as well as the Court of Appeal completely overlooked that by interfering with his right to privacy and rights

informational self-determination is already the illegal storage of data, regardless of the fact,
whether they have been misused. In this regard, it refers to the findings of the Constitutional Court of
22/03/2011, sp. stamp Pl. ÚS 24/10, and dated 14 May 2019, file no. stamp Pl. ÚS 45/17, as well as on
judgment of the Grand Chamber of the European Court of Human Rights of 05/04/2020 in the case of Rotaru
v. Romania, Complaint No. 28341/95. He also objects that the impact on his personal sphere is
in the given case reinforced by other facts (the work of an investigative journalist and increased
perception of the importance of invasion of privacy). The appellant's extensive argumentation, as well as

and some of his evidentiary proposals, however, even the appellate court did not reflect and the evidence without justification
did not perform For these reasons, according to the appellant, the conclusion about the absence of non-pecuniary damage is not only
incorrect but also unexamined.
11. The appellant also disagrees that the lawsuit could not impose an obligation on the defendant

to apologize to other "citizens" besides him (closer, however, to unmarked ones - the Supreme's note
court), because it is through it that the plaintiff tries to contribute to the defendant
fulfilled its obligations and initiated the necessary legislative changes. He thinks it's up to him to
formulated a method that brings him satisfaction for the harm caused. In that case
perceives as satisfaction not only a personal apology, but also a public apology to citizens, which will be more
the impetus for changes that will prevent the continuation of interference with the rights that concern all persons,

that communicate electronically.
12. The appellant repeated his proposal (repeatedly applied before the courts of both levels)
for the initiation of preliminary ruling proceedings pursuant to Article 267 TFEU, in which the Court would
assessed the compatibility of Czech legislation and European Union law. He proposed to appeal

the court contested the decision in accordance with the provisions of § 243d paragraph 1 letter b) o. s. r. changed so that,
that it complies with the originally filed lawsuit.
13. The defendant commented on the filed appeal, stating that she did not consider it justified. According to

the defendant courts of both levels quite rightly pointed out the fact that the norm-making activity
of the state cannot be considered an official procedure within the meaning of Act No. 82/1998 Coll. Defendant
also judges that the appeal does not meet the conditions of admissibility (but this conclusion further
does not justify). As the courts of both levels decided according to the defendant "completely in accordance
with settled jurisprudence and all arguments presented were settled within the proceedings
by the plaintiff", the defendant proposed that the Court of Appeal reject or dismiss the appeal.

III. Admissibility of appeal
14. The Supreme Court proceeded in the appeal proceedings and decided on the appeal in accordance with the law
No. 99/1963 Coll., Code of Civil Procedure, as amended from 1 January 2022 (see Articles II and XII of the Act
No. 286/2021 Coll.), hereinafter referred to as "o. s. r."

15. The appeal was filed on time (§ 240 par. 1 o. s. ř.), by a person authorized to do so
(participant in the proceedings), subject to the fulfillment of the conditions of § 241 o. s. ř.

4 30 Cdo 3909/2023

16. Pursuant to § 236 paragraph 1 of the Civil Code, final decisions can be challenged by appeal
the Court of Appeal, if the law allows it.

17. Pursuant to § 237 of the Civil Code, unless otherwise provided, an appeal is admissible against any
the decision of the appellate court ending the appeal proceedings, if the contested decision
depends on the resolution of the question of substantive or procedural law, in the resolution of which the court of appeals
deviated from the established decision-making practice of the Court of Appeal or which in decision-making
of the Court of Appeal has not yet been resolved or is being decided differently by the Court of Appeal
or if the legal question resolved by the appellate court is to be assessed differently.

18. The Supreme Court states first of all that the appellant's argumentation cannot be founded
the admissibility of the appeal in the part in which the appellant challenges the sentence I of the challenged decision in that
to the extent that the Court of Appeal confirmed the judgment of the Court of First Instance II (rejection of the apology
to "citizens" via the defendant's website). Original court of first instance

rejected the claim to this extent on the grounds that the appellant's proposal resembles an actio
popularis, by which, rather than the protection of one's personal rights, one seeks the protection of the public
interest, to which the civil law protection of a person's personality and his natural rights
does not provide The Court of Appeal followed the conclusion of the Court of First Instance on the deficiency
fully identified the active identity of the appellant. However, the appeal is within the meaning of this scope
§ 241b paragraph 3 of the Criminal Procedure Code is defective, as the appellant did not define in the text of the appeal what he is inferring from
to this extent its admissibility, nor does it in any way dispute the justification

of the appellate court beyond the general assertion that the appellate court had jurisdiction to this extent as well
comply and at the same time that the (subjective) center of gravity of the dispute is actually not even for the appellant in the matter of apology
"citizens" don't care. The Supreme Court therefore dismissed the defective part of the appeal pursuant to Section 243c paragraph 1 of the Civil Code.
he refused.

19. The appeal is inadmissible in the part that goes against statement II of the contested decision
on the costs of the appeal proceedings and against Statement I of the contested decision to the extent thereof,
in which the Court of Appeal affirmed Statement III of the Court of First Instance's judgment, on costs
discovery proceedings, because the appeal is not, according to § 238 paragraph 1 letter h) o. s. r. objectively
admissible to the extent that the appellate court decided on reimbursement of the costs of the proceedings.
This, of course, does not prevent the Supreme Court from making such statements as a result of their accessory

cleared, if he finds a reason to cancel the judgment on the merits.
20. Contested decision of the Court of Appeal to the extent that sentence I of the judgment was confirmed
court of first instance, however, depends on the resolution of the determining question for the case, whether it can

normative (in)activity of the state in matters related to the need for proper transposition of law
EU to consider as improper official procedure compensable according to § 13 OdpŠk. Considering
to the fact that in solving this legal question the Court of Appeal deviated from the settled decision
the practice of the Court of Appeal, the Supreme Court came to the conclusion that the plaintiff's appeal is according to
the provisions of § 237 of the Civil Code are permissible to this extent.

21. The challenged decision also depends on the resolution of another admissibly open appeal
questions regarding the potential for harm caused by interference with the right to informational self-determination
through legislation which, according to the appellant, contradicts EU law. Since this question
has not yet been fully resolved in the decision-making practice of the Court of Appeal, the appeal is based on
the provisions of § 237 of the Civil Code are permissible even to this extent.

22. After reviewing the judgment of the Court of Appeal in accordance with the provisions of Section 242 of the Civil Code, which
carried out without a hearing (§ 243a paragraph 1 first sentence o. s. ř.), the Supreme Court came to the conclusion,
that the appeal is not only admissible in relation to the two issues mentioned above, but that it is also
reasonable.

5 IV. Reasons for the appeal
On the responsibility of the state for legislative activity

23. The contested decision depended on the resolution of the legal question of the state's possible responsibility for
its normative (in)activity in relation to the need for proper transposition of EU law.

24. The Court of Appeal correctly stated that, in general, for malpractice in the sense
the provisions of § 13 of the Code of Administrative Offenses cannot fundamentally be considered legislative activity (it is not a matter of state performance
power in the sense of the provisions of § 1 paragraph 1 of the Act). The Supreme Court commented on this issue, e.g.
in their judgments of 31 January 2007, file no. stamp 25 Cdo 1124/2005, dated 15 June 2016, file no. stamp
30 Cdo 3598/2014, or dated 27 February 2018, file no. stamp 21 Cdo 254/2017, in which he stated,

that given that the Parliament consisting of the Chamber of Deputies and the Senate is the supreme
by the body of legislative power (cf. Article 15 of the Constitution), which in terms of representation
democracy decides by the vote of its members - deputies and senators whether to accept or not
of the submitted draft law, while there is no rule or regulation and there cannot be
about how a member of parliament, senator or parliamentary or senatorial club has a reception
laws to vote (according to Article 23 paragraph 3 and Article 26 of the Constitution, deputies and senators are obliged

to exercise his mandate in the interest of all the people and according to his best knowledge and conscience
and they are not bound by any orders), the process of adopting laws by voting is not possible
in the Chamber of Deputies or the Senate to be considered an official procedure within the meaning of § 13 of the Act
No. 82/1998 Coll.

25. However, this conclusion does not apply in the case of damages (and also, as will be explained below,
non-property damages) caused by an (alleged) violation of EU law and in the case of connected
liability claims against the state, as they are based on EU law itself. You can't do that
mix, as the Court of Appeal did in its conclusions in the contested decision (and together
with it also the court of first instance), state liability for damage caused by an incorrect official
procedure in the sense of Section 13 of the Civil Code and the responsibility of the state for the violation of Union law, because it goes

on mutually separate systems (cf. e.g. judgments of the Supreme Court of 26 September 2007,
sp. Stamp No. 25 Cdo 2064/2005, dated 20 August 2012, file no. stamp 28 Cdo 2927/2010, or from
15/06/2016, sp. Stamp No. 30 Cdo 5027/2014, as well as the decision of the Constitutional Court of 9 February 2011, file no. stamp
IV. ÚS 1521/10). Act No. 82/1998 Coll. is when applying claims arising
from the responsibility of the state for a breach of EU law used only by analogy, and that for the reason
the absence of a national legal regulation explicitly regulating this area (cf. e.g.
judgment of the Supreme Court of 14 November 2018, file no. stamp 30 Cdo 486/2018, point 27).

Analogous (or rather only reasonable) application of Act No. 82/1998 Coll. however, it cannot lead
to limit substantive rights established by EU law, at the same time also procedural
the conditions for compensation of damage established by national legislation must not be less
favorable than the conditions applicable to similar claims arising under national law
(principle of equivalence) and must not be modified in such a way as to make it impossible or excessive in practice
made it difficult to obtain compensation for damage (principle of effectiveness). For this reason, the appellant's conclusions
the court, which was based on the opposite idea, will not stand.

26. The Supreme Court has repeatedly reminded (cf. e.g. the judgments of the Supreme Court of
15/06/2016, sp. stamp 30 Cdo 3598/2014, dated 15 June 2016, file no. stamp 30 Cdo 5027/2014,
or from 28/05/2018, sp. stamp 30 Cdo 4231/2016) that the conditions of application of the principle
the state's responsibilities for damage caused by a violation of EU law follow and were clear

defined by established jurisprudence of the Court of Justice. The existence of damages as an institution
arising from Union (then Community) law, the Court of Justice already concluded in the judgment of
19/11/1991 in the joined cases C-6/90 and C-9/90 Francovich and Bonifaci v. Italská
the republic. The Court of Justice recalled here that the EEC Treaty (today the TFEU) created its own
the legal order incorporated into the legal systems of the member states, which binds the courts, and whose

6 30 Cdo 3909/2023

subjects are not only member states, but also their nationals, whom EU law imposes
it confers both duties and rights. He further emphasized in the decision that "these are national matters
courts that are responsible within their jurisdiction to apply the provisions of Community law
[Union] to ensure the full effect of these standards and to provide protection for the rights that these standards
provide to individuals. ... It is appropriate to state that the full effectiveness of the standards would be

challenged and that the protection of the rights they confer would be weakened if individuals did not
the possibility of obtaining compensation for damages if their rights are infringed by a breach of Community law from
member state parties. The possibility of compensation for damage at the expense of the Member State is particularly necessary
when ... the full effect of Community [Union] norms is conditional on action by the state,
and when, as a result, individuals in the event of its inactivity cannot apply to national
courts of law, which is granted to them by Community law." From the above conclusions, the CJEU
deduced that the principle of state responsibility for damage caused to individuals by violation of law

The European Union is intrinsic to EU law and finds its basis "also in Article 5 of the Treaty
[now Article 4(3) TFEU], according to which Member States [shall] take all appropriate general
and special measures to fulfill obligations arising from Community law [in today's version: ze
Treaties or from acts of Union institutions]."

27. In the decision of 5 March 1996 in joined cases C-46/93 and C-48/93, Brasserie
du pêcheur SA, Factortame Ltd and others, then the Court further elaborated that in case of infringement
a right granted to an individual directly by the norm of EC law (now EU) results in the right to compensation
damages from the direct effect of the legal norms of the Union, the violation of which caused the damage
caused by Violation of directly effective standards thus results in state liability for damage. As
The EEC Treaty (today the TFEU) does not contain any provision that expressly regulates it

consequences of a violation of the right granted to an individual, the responsibility of the state must be assessed
taking into account the basic principles of the legal system of the European Union.
28. Specific conditions under which state responsibility for violation of EU law is given

arise from the individual's right to compensation for damage, result from the above-mentioned judgment of the CJEU
of 19/11/1991, in joined cases C-6/90 and C-9/90, Francovich and Bonifaci v
Republic of Italy, judgment of the ECJ of 5 March 1996, in joint cases C-46/93 and C-48/93,
Brasserie du pêcheur SA, Factortame Ltd and others, and the ECJ judgment of 30/09/2003, in
Case C-224/01, Gerhard Köbler, and are constructed as follows:

a) the aim of the violated legal regulation is to grant rights to individuals: the right to
compensation for damage to an individual therefore arises in a situation where a member state commits a breach
such norms of Union law which sufficiently establish in favor of this individual
a determinable subjective right or protects his legal interest;

b) the violation must be sufficiently serious, the degree of seriousness being in the conditions
interprets EU law depending on the scope of discretion conferred on the data subject
by regulation to a national authority. At the same time, the sufficient seriousness of the violation is established
defined by the jurisprudence of the CJEU as arising in circumstances where the decision-making authority
clearly and seriously exceeded the limits of his discretionary authority (cf. judgment of the CJEU from

on 4/7/2000, in case C-352/98, Laboratoires Pharmaceutiques Bergaderm SA
and Jean-Jacques Goupil). In the case of Brasserie du pêcheur SA, Factortame Ltd and others
it was defined by the CJEU that "among the facts to which the competent court must in this
to take into account, primarily the degree of clarity and precision of the violated standard,
the scope of discretion that this standard leaves to the authorities of the state or
Community [Union], the intentional or unintentional nature of the wrongdoing committed
actions and resulting damages, excusability or inexcusability of any wrongdoing

legal assessment, the fact that the behavior of the authority may have contributed to the omission
Community [Union], the adoption or maintenance of national measures or practices,
which are in conflict with Community [Union] law" (cf. the judgment of the CJEU dated 5.3.

7 1996, in joined cases C-46/93 and C-48/93, Brasserie du pêcheur SA, Factortame
Ltd and others, point 56). The starting point for determining whether there is a breach of Union law, which
committed by the member state, sufficiently serious, is therefore to find out what degree of freedom
the discretion he had, or what powers he had in relation to interpretation and application
of Union law. At the same time, the dependency applies that where the body has a wide measure

discretion, the breach is serious if it amounts to an obvious and serious breach of the limits hereof
discretion, and conversely, where the degree of discretion is limited or non-existent, it is
seriousness already constituted by the violation of EU law in itself (cf. MALÍŘ,
John. Liability of member states for damage in European Union law. Charles University
in Prague, Faculty of Law, 2008, p. 107);

c) between the breach of duty by the Member State and the damage caused
there must be a causal connection to the injured party. As part of the causal assessment
at the same time, on the basis of the jurisprudence of the CJEU, it is necessary to examine whether it did not occur
to the disruption of the causal connection by the actions or omissions of another subject of law or
by the intervention of force majeure (cf. the decision of the CJEU of 15 June 1999, in case C-140/97,

Rechberger and others), or by the fact that the injured party himself contributed to the occurrence of the damage
by action or omission, or by failing to fulfill his mitigation obligation in
relation to damage.
29. All three conditions (violation of the Union legislation granting the right

individuals, a sufficiently serious violation, a causal connection between a violation of legal
regulation and damage) must be met cumulatively and apply to any type of breach
of Union law, are therefore necessary and at the same time sufficient for individuals to have a direct
the right to compensation for damage (cf. judgment of the CJEU of 5 March 1996, in connected cases
C-46/93 and C-48/93, Brasserie du pêcheur SA, Factortame Ltd and others, paragraph 51, judgment
ECJ of 19 March 1991, in case C-202/88, British Telecommunication, point 38, judgment

ECJ of 23/05/1996, in case C-5/94, Hedley Lomas, point 24, from later ones, e.g.
judgments of the CJEU of 26/01/2010, in case C-118/08, Transportes Urbanos y Servicios
Generales SAL, point 30, dated 15/11/2016 in case C-268/15, Ullens de Schooten, point 41,
or from 10/03/2022 in case C-177/20, "Grossmania", point 69).

30. If the stated conditions are met, the state must provide compensation for the damage caused
damage in accordance with national laws governing liability, whereby
procedural and substantive conditions for compensation for damages established by national law
the regulations must not be less favorable than the conditions applicable to similar claims arising on
on the basis of national law and must not in practice make acquisition impossible or excessively difficult
damages (see the above-mentioned judgment of the CJEU in the Francovich case, point 43, or also, e.g.
judgment of the ECJ of 9 November 1983, in case 199/82, San Giorgio, point 14, and of

17/04/2007, in case C-470/03, AGM COS-MET, item 89; more recent decisions leave
an explicit reference to the procedural and substantive conditions for damages in favor
of a more general condition, however, it is still a line of jurisprudence referring to the original one
the decision in the Francovich case; cf. e.g. judgments of the CJEU dated 9/9/2015, in the matter
C-160/14, Ferreira da Silva e Brito, point 50, dated 4 October 2018, in case C-571/16, Kantarev,
point 123, or from 28/06/2022, in case C-278/20, Commission v. Spain, point 33).

31. In terms of domestic legislation, the above means that if liability is given
of the Czech Republic for violation of EU law, may arise when other conditions are met
the injured party is entitled to compensation for both the incurred damage and non-pecuniary damage. Provisions § 1
paragraph 3 and § 31a OdpŠk, which was included in Act No. 82/1998 Coll. embodied in the amendment through

Act No. 160/2006 Coll., namely to the regime of state responsibility for the exercise of public authority (specifically
for incorrect official procedure and illegal decisions) explicitly included compensation incurred
non-property damages. In accordance with the basic principle of EU law enshrining the principle of the so-called

8 30 Cdo 3909/2023

of equivalence, claims from a breach of EU law must also include the possibility of recovery
upon meeting the statutory conditions for non-pecuniary damage compensation. This conclusion then applies
even if the violation of Union law was caused by legislative action, despite the fact that
Normative (in)activity is not possible in the sense of Act No. 82/1998 Coll. considered incorrect
official procedure, and this law thus applies in purely national situations to the legislative activity of the state

does not apply (as explained above). The opposite interpretation would impermissibly lead to a factual one
apportionment of responsibility for infringements of Union law so that in the part in which the infringement would
of Union law corresponded to or occurred through an incorrect official procedure
illegal decision, the injured parties would be awarded damages as well as non-pecuniary damage, while
in the event of a breach of EU law by legislative (in)activity, only damage would be awarded
property. However, national law does not recognize any similar division (restriction), since the form
adequate satisfaction under the above-mentioned law includes compensation as the case may be

property and non-property damages. To introduce any division in the method of compensation
exclusively for the area of violation of EU law, there is no reasonable reason, and on the contrary it is appropriate
to conclude that despite the exception, which in the context of Act No. 82/1998 Coll. represents legislative
(in)activity, this is precisely the law in the case of damage or non-property damage caused by wrong
transposition of EU directives with the closest legal regulation in terms of content, which is applied appropriately
to determine the extent and form of compensation awarded.

32. In support of this, we can point to the fact that the Court of Justice in point 42 above
of the said judgment in the case of Brasserie du pêcheur stated that the conditions under which it can to states
incur liability for damage caused to individuals by violation of European Union law,
cannot, without a specific reason, differ from the conditions under comparable circumstances

governs the responsibility of the Union. The protection of the rights granted to citizens by EU law is impossible
change depending on whether the cause of the damage is a state authority or a Union authority (cf. also
judgment of the ECJ of 4 July 2000, in case C-352/98 P, Bergaderm SA, point 41). In the area
the non-contractual liability of the Union itself is then recognized by EU law as compensation incurred
damage, as well as non-property damage (see, for example, the judgment of the Court of Justice of 3 February 1994, in the case
C-308/87, Grifoni, judgment of the Court of First Instance of 8 October 1992, in case T-84/91,
Meskens, or more recently, e.g. the judgments of the Tribunal of 20 October 2021, in case T-220/20,

Kerstens, and dated 27 October 2018, in the joined cases T-314/16 and T-435/16, VG). Although
in practice, there are no liability systems of the European Union and member states for violations of EU law
identical rights, from the above, according to the Supreme Court, the conclusion clearly follows that
compensation for damage caused by a breach of EU law is not limited to compensation without further ado
pecuniary damage, but on the contrary, it should fundamentally also include compensation for non-pecuniary damage,
if the prerequisites established by law for its recognition are met.

33. From the above conclusions, it can be concluded that in the circumstances when in the Czech Republic
there is no adequate regulation of the state's responsibility for violations of EU law on national ones
level, are applied in accordance with the principle in a situation where there is a violation of Union law
the advantages of the condition of state responsibility resulting from the jurisprudence of the Court of Justice and national

Act No. 82/1998 Coll. shall only apply if European Union law (including case law
Court of Justice) does not stipulate otherwise. In other words, Act No. 82/1998 Coll. is used
reasonably only where its regulation is consistent with the regulation of Union law, or for questions,
which EU law does not address, provided that it does not make it impossible or excessively difficult
the individual's right to receive damages.

34. Projected into the circumstances of the case under consideration, the above means that the Court of Appeal
incorrectly assessed the asserted claim as a claim based on the provisions of Section 13 of the Code of Civil Procedure.
However, the assumptions of state responsibility for violations of EU law apply generally, in relation
to the activities of all state authorities, including legislative ones (cf. e.g. the judgment of the Supreme Court
of 24/06/2020, file no. Stamp No. 30 Cdo 2416/2018, or judgments of the CJEU dated 18 January 2022, in

9 cases C-261/20, Thelen Technopark Berlin, point 43, or from 4 October 2018, in case C-571/16,
Kantarev, point 93). It is not decisive for the matter, as concluded by the Court of Appeal, that the violation
of Union law occurred through the inaction of the legislator in response to the judgment of the CJEU from
on 8 April 2014, in the joined cases C-293/12 and C-594/12, Digital Rights Ireland, whereby
the directive, on the basis of which the transposition took place and continues to take place, was repealed

operational and location data.

On the relationship between interference with fundamental rights and the occurrence of non-pecuniary damage
35. In the second part of his appeal, the appellant submits a thesis according to which the unauthorized interference

to the fundamental right (here the right to the protection of personal data, or to informational self-determination)
always leads to non-property damage. According to appellant, the Court of Appeals erred if
he based the contested decision on the conclusion that the burden of assertion and the burden of proof had not been met
due to the damage caused.

36. The appellant cannot be found guilty if from the alleged interference with the fundamental right to protection
personal data represented by the unauthorized storage of its operational and location data
of data constructs ipso facto the presumption of the existence of damage and at the same time the presumption of fulfillment
of the necessary assumption of a causal connection between intervention and damage (in other words, it
between the breach of duty and the occurrence of damage). Even so, however, there is a legal assessment
Court of Appeal incorrect.

37. As follows from the jurisprudential conclusions mentioned above, for the onset of state responsibility
for a breach of EU law, three conditions must be met, namely, first, a breached rule
of EU law grants rights to the injured party, secondly, a breach of this rule is sufficient

serious and thirdly there is a direct causal link between that breach and the damage which
suffered damage (after all, this construction is – apart from issues of culpability – similar to
conditions of tort liability according to § 2910 of Act No. 89/2012 Coll., Civil Code;
for that, cf. e.g. judgment of the Supreme Court of 25 November 2022, file no. stamp 25 Cdo 1621/2021;
or state responsibility according to Act No. 82/1998 Coll.). From this construction follows the conceptual
separation of intervention (corresponding to the violation of the rule or illegal act itself)
and damages, respectively damages (corresponding to the consequence of the illegal act) in their mutual relationship

cause and effect.
38. For this reason, the appellant's references to findings are also inconclusive
of the Constitutional Court of 22 March 2011, file no. stamp Pl. ÚS 24/10, and dated 14 May 2019, file no. stamp

Pl. ÚS 45/17, as well as the judgment of the Grand Chamber of the European Court of Human Rights dated
4.5.2000, in the case of Rotaru v. Romania, No. 28341/95, because the appellant referred to
the passages cover precisely the interference with the fundamental right (which, however, the courts in the assessed
things were also not dealt with), but not the occurrence of damage, which is necessary from the intervention itself in terms of the concept
differentiate consistently.

39. To a certain extent, one can agree with the appellant that the context of (possible) misuse of personal
data stored with telecommunications service providers in light of the above
means that proving specific damage (primarily non-pecuniary, but mutatis mutandis
and property), due to the intangible nature of personal data, it will be difficult to access them and for
the "distance" of their processor more difficult. However, according to the Supreme Court, that is not the only reason
the nature of this non-pecuniary damage so specific as to establish without further a reason for

the construction of the presumption of the existence of non-property damage and causal connection (such as
in the case of liability for the unreasonable length of the proceedings, to which the appellant by analogy
refers to, or in case of violation of the right to an effective investigation - cf. judgment of the Most High
court of 24/02/2021, file no. stamp 30 Cdo 3509/2019). This conclusion can also be supported by reference

10 30 Cdo 3909/2023

on the decision-making practice of the Court of Justice, which concluded that even in the matter of non-pecuniary damage
caused by improper processing of personal data, the existence of the damage suffered is one
from the conditions of the right to compensation for damage, as well as the existence of a breach of legal obligation
and causation between that injury and that breach, the three conditions being
cumulative. It cannot therefore be inferred that any "breach" of an EU regulation per se

establishes the said claim for damages in favor of the data subject. According to the Court
therefore, a mere violation of EU law with respect to the processing of personal data is not sufficient
to award the right to compensation for damage, as the question of this violation is different from the question
the existence of damage (cf. judgments of the ECJ of 05/04/2023, in case C-300/21, Österreichische
Post AG, points 28–42, dated 14/12/2023, in case C-340/21, Nacionalna agencia za
come, point 77, of 14/12/2023, in case C-456/22, Gemeinde Ummendorf, point 21,
or from 25 January 2024, in case C-687/21, MediaMarktSaturn, point 58).

40. The Supreme Court thus concludes that the opinion presented by the appellant on the presumption of existence
damages must be rejected and that the existing jurisprudential conclusions regarding non-pecuniary compensation
damages (as recapitulated below) can also be applied to the proceedings under consideration. From these conclusions

however, the appeals court deviated in the contested decision.

Regarding the issue of non-pecuniary damage caused by improper processing of personal data
41. The Supreme Court has stated in the past that it is generally not possible to incur non-pecuniary damage

to prove, as it concerns the state of mind of the injured person. Conclusions about its existence so fundamentally
consist "only" in finding out whether there are objective reasons for making specific
the person could feel damaged. In other words, it is necessary to consider whether due to
given the specific circumstances of the case, another person in a similar position could also feel
affected in the components that together form the non-property sphere of the individual. This is
about the suffering on those intangible values that affect the moral integrity of the injured person
(this includes especially her dignity, honor, good reputation, but also other values that are usually

they are also reflected in a person's inner life – freedom of movement, family life, uncertainty, etc.).
Therefore, if the court reaches the conclusion in a specific case that none of these components could be
in a significant way as a result of an illegal decision or improper official procedure
negatively affected, it is appropriate to conclude that there was no non-property (moral)
damages (cf. judgments of the Supreme Court of 25 April 2018, file no. 30 Cdo 1614/2016, dated
20/01/2016, sp. stamp 30 Cdo 2865/2015, dated 23 May 2021, file no. stamp 30 Cdo 3509/2019, or from

on 25/01/2022, sp. stamp 30 Cdo 429/2021).
42. However, another person in a similar position cannot be understood as any other person
("average citizen") exposed to the same effect. The existence of non-pecuniary damage is necessary
always be compared with the other person or persons whose rights have been similarly affected

way and who are aware of such intervention. Taking into account the specific circumstances of the case
at the same time, it also includes consideration of sufficiently general, but not necessarily shared by all
characteristics associated with the position of the person concerned. The Supreme Court, for example, in its
of the judgment of 11 November 2015, file no. stamp 30 Cdo 3849/2014, assessed the case in which
the illegal action of the police commissioner (which contradicted the right of the lawyer or his client,
make an audio recording of the presentation of the explanation, refused to accept the granting of a power of attorney
into the protocol, he refused to log certain facts, which the lawyer requested to be logged

he insisted, refused to issue the protocol to the lawyer after the presentation of the explanation, submitted to the lawyer
to the Czech Bar Association, a complaint that was dismissed as unfounded, etc.) intervened in
rights of the persons giving explanations, but also to the rights of the lawyer representing these persons. The highest
here, the court took into account the fact that in the subject activity, as well as in the practice of advocacy in general,
the lawyer will be forced to defend and promote his (or client's) opinion against the opinion of others

11 people, will find themselves in conflicting, emotionally tense and often stressful situations or
humanly unpleasant. So the lawyer has to a certain degree of mental discomfort that he will incur
in the exercise of his profession, assume and bear. For this reason, the Supreme Court then
confirmed the conclusion of the lower instances there regarding the absence of non-pecuniary damage.

43. It thus follows from the given that the courts must fundamentally consider the origin and scope of the eventuality
non-pecuniary damage (i.e. whether the person in question has objective reasons to feel damaged) appropriately
also reflect the position of the person in question and other sufficiently generalizable circumstances (whether the origin
they intensify the damage or, on the contrary, exclude it).

44. Due to the considerable abstraction associated with the processing of personal data, which
usually happens outside the direct disposal of the data subject (and in the case of the average citizen as well
often without his knowledge) as well as with regard to the conclusions of the courts of both levels which concluded that
the appellant's claim of a long-term distressing feeling from unauthorized interference with his

fundamental rights only indicate potential harm, the Supreme Court finds it necessary to
in the present case, also comment on the issue of (possible) non-pecuniary damage in a specific context
improper processing of personal data. This is closely related to the protection of fundamental rights to
privacy and informational self-determination.

45. According to Article 10, paragraph 3 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter"), everyone has
the right to protection from unauthorized collection, disclosure or otherwise
misuse of personal data.

46. Pursuant to Article 52(1) of the EU Charter of Fundamental Rights (hereinafter referred to as the "EU Charter"), the provisions
of this charter, in compliance with the principle of subsidiarity, intended for authorities, institutions and other entities
Union, and further to the member states, exclusively if they apply Union law. They therefore respect the rights
adhere to the principles and support their application in accordance with their powers, at
maintaining the limits of the powers conferred on the Union in the Treaties.

47. According to Article 7 of the EU Charter, everyone has the right to respect for their private and family life
life, housing and communication.

48. According to Article 8(1) of the EU Charter, everyone has the right to the protection of personal data that
concern.
49. According to Article 8, paragraph 2 of the EU Charter, these data must be processed correctly, to accurately

specified purposes and based on the consent of the person concerned or on another basis
legitimate reason established by law.
50. Directive 2002/58, the infringement of which is the subject of the present proceedings, does not itself contain

compensation system for damage caused by the collection and storage of personal data in violation of this
directive, which could serve as a guide for the interpretation of domestic regulations which
(in terms of the principles of equivalence and effectiveness) define the scope of the awarded compensation.
51. However, the Court of Justice has previously expressed some principles that are connected with the origin and nature of

intangible damages caused by unauthorized handling of personal data. Tight fit
issues of handling personal data and protection of basic rights to privacy and information
self-determination in the sense of Articles 7 and 8 of the EU Charter [which, as of 1 December 2009, is no longer directed only towards
to the EU authorities themselves, but in the areas of EU law, it also binds the member states
states, as a result of which its provisions can in principle also be invoked by individuals (cf.
e.g. judgment of the ECJ of 26/02/2013, in case C-617/10, Fransson, points 17-21, or
decision of the Constitutional Court of 3 November 2020, file no. stamp Pl. ÚS 10/17, point 55)], as well as Article 10 paragraph 3

Charters (for the relationship between the Charter and the EU Charter, cf. the decision of the Constitutional Court of
10/11/2020, sp. stamp Pl. ÚS 33/16, point 168), together with the necessity of the existence of a coherent
and predictable system of protection of these fundamental rights, thus making it impossible to proceed without

12 30 Cdo 3909/2023

taking into account the conclusions that non-property damage caused by improper processing of personal
data caught the attention of the Court of Justice.

52. He had the opportunity to know the nature of the non-pecuniary damage caused by illegal handling
with personal data to be expressed in the context of Article 82 of the Regulation of the European Parliament and of the Council (EU)
2016/679 of 27 April 2016 on the protection of natural persons in connection with the processing of personal
data and on the free movement of such data and on the repeal of Directive 95/46/EC (hereinafter referred to as "GDPR").
This provision states that anyone who has suffered material damage as a result of a breach of this regulation
or intangible damage, has the right to receive compensation for the damage suffered from the controller or processor.

53. The Court concluded here that the harm to the data subjects may consist mainly of mere
"loss of control" over their own data as a result of a breach of this regulation, namely
even if there was no actual misuse of the data in question to the detriment of the mentioned persons.
If the data subject claiming damages on this basis argues a concern,

that his personal data will be misused in the future as a result of such a breach, he must
the national court to which the case was brought to verify that this concern may be concrete
considered justified under the circumstances and in relation to the data subject. In other words, just
fear of possible misuse of personal data by third parties felt by the data subject,
may in itself represent immaterial damage (cf. the decisions marked in point 39
Court of Justice in Nacionalna agencia za prichodite, paragraph 85, and MediaMarktSaturn,
point 65).

54. The Court also stated that – particularly with regard to ensuring a consistent and high level
protection of natural persons in connection with the processing of personal data - it is necessary for Article 82
GDPR to approach in such a way that compensation for intangible damage in the sense of this

the provision must not be conditional on the damage suffered by the data subject reaching a certain level
degree of seriousness (cf. in point 39 marked decisions of the Court of Justice in the matter
Österreichische Post AG, paragraph 51, and Gemeinde Ummendorf, paragraph 19).
55. Projecting the above-mentioned conclusions into the circumstances of the proceedings under review means that the conclusion

the court of first instance that the appellant claimed only potential harm, and on the contrary did not claim either
did not demonstrate the occurrence of specific damage caused by unauthorized collection
and storing operational and location data, is incorrect. In case of intervention in
the basic right to respect privacy and to protect personal data is already itself
fear of misuse of personal data [can also be reasonably pointed to the conclusion that the risk of misuse
and unauthorized access to operational and location data arises from the storage itself

and subsequent storage of this data by providers of electronic communications services
(cf. judgment of the CJEU of 6 October 2020, in case C-623/17, Privacy International, point 73)]
capable of representing non-pecuniary damage. With regard to the conclusions of the decision of the Court of Justice
indicated in the previous point, which modify the general conclusions about the occurrence of non-property damage,
according to which it is necessary that some of the components that make up the total non-property sphere
individual, was affected in a significant way (cf. point 41 of this judgment), so it is on
place to conclude that although the courts cannot make factual conclusions regarding the existence of damage

caused by the illegal storage of personal data completely resign and the occurrence of damage
import just from the very intervention in the right to privacy and informational self-determination, for
the conclusion regarding the occurrence of non-pecuniary damage will usually be sufficient that the feeling of interference with the moral
the integrity of the person concerned, given the specific circumstances of the case and the latter's position
persons, does not seem improbable. At the same time, it is clear that it is precisely a possible violation of the law
The European Union on the part of the state would be one of the important ones in terms of necessary causality
the causes of damage or injury, even if the state and its bodies themselves do not directly provide the data

does not collect or store.

1356. In the present case, the focus of evidence on the part of the appellant is based on the existence
non-pecuniary damages must consist (in particular) of allegations and evidence relating to it
position and (mostly) objective factors causing it to have a reason (whether as a common
citizen or as a person who deals more systematically with the given issue) to feel imposed
operational and location data (with the latent possibility of their misuse) affected. Caller

procedural activity aimed at proving his journalistic profession, as well as his professional one
and free-time focus on the issue of personal data, so it cannot be a court
rejected as irrelevant only because, according to the lower courts, it does not directly point
to specific and measurable damage. So if the court of first instance invited the appellant: "let him claim
and will demonstrate how the alleged specific procedure of rule-making, i.e. incorrect official procedure (sic!),
plaintiff specifically damaged. It is necessary to state specific damage to the plaintiff, not that it occurred
to general damage to the potential subject" (see the resolution of the court of first instance dated

26/09/2022, no. 31 C 22/2021-79), thereby placing demands on him that are difficult to fulfill,
thus contradicting the above conclusions.
57. The Supreme Court adds to the matter that it is necessary if there is a violation in further proceedings

EU rights found, when assessing the occurrence of non-pecuniary damage, proceed in such a way that it does not occur
to empty the fundamental right to privacy and informational self-determination and that the requirements for
the proof of the existence and extent of the damage were not, with regard to the jurisprudence mentioned above, exaggerated
and did not lead to the practical unenforceability of the right to informational self-determination; which of course is on the side
the second does not mean that thorough proof of all the circumstances of the case should not
their place in the present case, as these circumstances always play a role in considering the form,
possibly of the satisfaction granted above (although the plaintiff in this case relutary satisfaction

does not require). This follows in particular from the provisions of § 31a, paragraph 2, sentence two of the Criminal Code
emphasis on the seriousness of the damage caused and the circumstances that led to the damage (cf. judgment
of the Supreme Court of 27 June 2012, file no. stamp 30 Cdo 3731/2011 or dated 25 January 2022,
sp. Stamp No. 30 Cdo 429/2021), for the area of violation of EU law then also in principle, according to
which compensation for damage caused to individuals by a breach of EU law must be proportionate
caused damage in such a way as to ensure the real protection of their rights (cf. e.g. the aforementioned
decision of the Court of Justice in Brasserie du pêcheur and Factortame, paragraph 82, or

judgment of the CJEU of 25/03/2021, in case C-501/18, Balgarska Narodna Banka, point 125).
58. For the purposes of further proceedings, it can also be recalled that in the judgment of the Supreme Court of
on 11/01/2012, sp. stamp 30 Cdo 2357/2010, was, even for the conditions of providing satisfaction

for the limitation of personal freedom, explained that the apology as a satisfactory means involving
neither is the expression of the subjective demand of the injured party for the manifestation of the state's favorable will towards him
establishing a violation of law and not compensating for non-property damage in money. Damaged by her
by applying it, he expresses that it is a sign of recognition of the mistake. In a functioning legal state
recognizing the rules of decency should always be available as a compensatory means
the first, for many even the only election (cf. also, for example, the judgments of the Supreme Court from
on 19/11/2014, sp. stamp 30 Cdo 3850/2014, or from 30 September 2019, file no. stamp

30 Cdo 3011/2018).
59. In conclusion, the Supreme Court points out that the adaptation of the approach of the Court of Justice to the questions
of the nature of intangible damage caused by illegal processing of personal data, expressed

Court in the context of Article 82 GDPR, does not mean that the claimant's claim would be
in the current proceedings, constituted by this provision or that its (albeit analogous)
application. As follows from this provision, Article 82 of the GDPR regulates the relationship between who
suffered damage as a result of the violation of this regulation, and by the administrator or processor, by whom, however
there is no defendant in the circumstances of the assessed proceedings. Despite the conclusions below, this is the case
in the case under consideration still about non-contractual liability of the state for breach of EU law,

14 30 Cdo 3909/2023

within which the determination of specific conditions for the application of related claims (in the absence of
of Union rules and maintaining the principles of equivalence and effectiveness) at the discretion of the Member State.

60. Although the conditions for applying the claim in the case under consideration and in the case
hypothetical claim for compensation according to Article 82 of the GDPR undoubtedly differs, it is nevertheless according to
of the Supreme Court, it is necessary to approach precisely the issues connected with the existence of non-pecuniary damage
as uniformly as possible.

61. First, both Directive 2002/58 and the GDPR aim to protect the fundamental right to
privacy and informational self-determination guaranteed by the EU Charter (cf. Article 1, paragraph 1 and point 12
justification of Directive 2002/58 and Article 1 paragraph 2 and points 3, 10 and 51 of the GDPR)
and in the domestic context also Article 10, paragraph 3 of the Charter (cf. point 51 of this judgment). In both
cases, it is about the protection of an identical interest, i.e. "the right of each person to make their own decisions
about what information about herself she will provide to other persons or make public, with her consent

is also necessary for their collection or publication by other persons" (cf. finding
of the Constitutional Court of 27 November 2012, file no. stamp Pl. ÚS 1/12, point 301). At the same time it is nature
interference with fundamental rights objected to by the appellant in the case under consideration, i.e. retention
personal data by a telecommunications service provider without the consent of the person concerned or
other eligible legal basis, outside the responsible entity, in principle comparable
situations covered by Article 82 of the GDPR (and the CJEU jurisprudence mentioned above). In other words,
although the obligation of proper implementation is aimed at the state, while the obligations are outgoing

of the GDPR are directed towards the administrator and processor of personal data (which will typically be persons
private law), in the circumstances of a specific natural person, the incorrect transposition of the directive
2002/58, if it comes to light in further proceedings, it will appear comparable to the processing of personal
data without a legal basis; that is, by processing personal data even in those situations where it is
natural person protected from such processing by means of Union law.
In such a situation, the approach where the question of the existence of non-pecuniary damage would be assessed differently
depending on whether the intervention was caused by a breach of obligations based on the GDPR by the administrator or

violation of EU law by the state (i.e. when, in one case, domestic law would result in a loss
controls and the fear of misuse of personal data was considered harm and in the second case it was not),
was at the expense of the predictability of the fundamental rights protection system. For the purpose of securing the same
approach in comparable situations, it is therefore necessary to take into account the above-mentioned conclusions of the Court
court accepted in the context of Article 82 of the GDPR, even in situations whose regulation otherwise fundamentally belongs
domestic legal order.

62. Finally, it can also be pointed out as a support that the principle of priority imposes in the interests of security
of the effectiveness of all provisions of Union law to national courts, in particular that, as far as possible,
to the greatest extent, they interpreted their national law in a way that is consistent with the EU law
by law, and to grant individuals the opportunity to obtain redress if their rights

affected by a violation of EU law attributable to a member state (cf. judgments of the CJEU from
on 24/06/2019, in case C-573/17, Popławski, point 57, of 08/03/2022, in case C-205/20,
Bezirkshauptmannschaft Hartberg-Fürstenfeld, item 35, or dated 04/05/2023, in the matter
C-78/22, ALD Automotive, paragraph 39).

To driving defects

63. In connection with the question of the occurrence of non-pecuniary damage, it is also necessary to testify on behalf of the appellant
the objection that the contested decision cannot be reviewed (as well as the judgment of the first court
degree) due to the appellant's omission of the submitted statements and evidentiary proposals.

64. Pursuant to § 157 paragraph 2 of the Civil Code, unless otherwise stipulated, the court in the justification of the judgment
shall state what the plaintiff (appellant) demanded and for what reasons and how he expressed himself in the matter

15 the defendant (another party to the proceedings) shall briefly and clearly explain which facts he has proven and which
not what evidence he based his factual findings on and what considerations he used when evaluating the evidence
he directed why he did not provide additional evidence, what conclusion he made about the facts and how he assessed the matter
on the legal side; it is not admissible to transcribe from the file the factual statements of the participants and what was done
evidence. The court makes sure that the reasoning of the judgment is convincing. Reasoning given

in the written version of the judgment, it must be in accordance with the announced justification.
65. The issue of so-called omitted evidence is devoted to the protection of constitutionality by the court
extraordinary attention in the long term, while general courts are obliged in this regard

the subject finding case law of the Constitutional Court, relating to this issue, in its own
understandably, consistently respect decision-making activities (cf. Article 89, paragraph 2 of the Czech Constitution
Republic).
66. The Constitutional Court, for example, already in its decision of 20 October 2005, file no. stamp III. ÚS 139/05,

interpreted and justified the legal opinion that so-called omitted evidence, i.e. evidence about which in the proceedings
was not decided by the court, or the evidence used by the court in the procedure according to § 132 of the Civil Code
(according to the principles of free evaluation of evidence) did not deal, almost always establish not only
unreviewability of the issued decision, but also its unconstitutionality. By law
to the prescribed procedure in the pursuit of law (principles of fair trial) resulting
from the Charter (Article 36, paragraph 1) must be understood as meaning that in connection with the general regulation (civil
court rules) in the proceedings before the court, the participant must be given the opportunity to express himself not only

to the evidence provided (Article 38, paragraph 2 of the Charter) to the matter itself, but also to mark (suggest)
evidence, the implementation of which he considers necessary to establish (prove) his claims; to this one
the procedural right of the participant corresponds to the duty of the court not only on the proposed proposals (incl
proposals of evidence) to decide, but also if he does not comply with them in his decision at least
briefly explain why, for what reasons (usually in relation to substantive legal regulations,
which he applied and the legal conclusions he arrived at based on the facts of the case) proposed

he did not provide evidence, or he did not accept it as the basis of his findings of fact (§ 153 para.
1, § 157 paragraph 2 o. s. ř.). If the general court does not do so, it will burden its decision not only with defects
consisting in the violation of general procedural regulations, but at the same time proceeds in contradiction
the principles expressed in Chapter Five (mainly Article 36, paragraph 1, Article 38, paragraph 2) of the Charter
and as a result also in violation of Article 95, paragraph 1 of the Constitution.

67. In the case under consideration, the appellant claimed and provided evidence regarding the issue of the damage caused
proposals aimed (among other things) at proving the fact that legislative inaction on him
the defendant falls harder than an ordinary citizen. In this context, he emphasized, among other things,
that due to his professional and leisure activities, the unauthorized storage of his personal
data burdens more intensively than an ordinary citizen, that there is no possibility of misuse of the data stored in this way
only hypothetical, but that it occurred in the past (the resolution of the Circuit Court was presented as evidence

for Prague 5 dated 2 March 2021, No. 1 T 93/2020-775, which, according to the appellant, describes
illegal procedures of members of the Police of the Czech Republic when using operational and location data),
also marked the evidence regarding the extent and possibility of using the stored data (these are "maps"
covering ten days which the appellant proved as possible from the stored location data
retrospectively reconstruct its movement during the day; he additionally added these to the court's summons) and described
how the defendant's inaction is reflected in the way he communicates with his journalists

sources (through the conducted interrogation of the participant).
68. Evaluation of the evidence and everything that came to light in the proceedings, however, should logically be done
reflect in the justification of the judgment. The relationship between the facts must follow from the justification
findings and considerations in the evaluation of evidence on the one hand and legal conclusions on the other.

The situation when the judgment lacks the requirements listed in § 157, paragraph 2 of the Civil Code, in its consequences
leads to the fact that it becomes unreviewable (cf. e.g. the judgment of the Supreme Court of
17/01/2008, sp. stamp 32 Odo 1091/2006). It should be borne in mind that the legally required proper

16 30 Cdo 3909/2023

the justification of the written form of the judgment is not only a formal requirement to avoid
the penetration of unsubstantiated, unconvincing or perhaps indeterminate or even
incomprehensible court judgments, but it should primarily be a source of knowledge for reasoning
of the finding (appellate) court, both in the matter of ascertaining the facts of the matter, as well as its
legal assessment. It should also be a means of knowing the reasoning of the finding (appeal) court

in the evaluation of the evidence conducted by him in the proceedings, his considerations and results in the attribution
relevance of individual means of evidence, their (un)persuasiveness (e.g. in the case
witness interviews) or the correctness of their source (in the case of documentary evidence), etc. (cf.
judgments of the Supreme Court of 24 March 2010, file no. stamp 30 Cdo 3655/2009, dated
26/10/2011, sp. stamp 30 Cdo 3155/2011, or from 9 May 2018, file no. stamp 30 Cdo 1257/2018).

69. However, the court of first instance did not comply with the above-mentioned judicial requirements, if
according to the justification of his decision, he was based only on written newspaper articles
by the appellant, from a request for the liquidation of personal data addressed to T-Mobile Czech
Republic a.s. dated 7 October 2020, from the statement of the Office for Personal Data Protection dated
9 March 2021 and from the interview of the appellant. Based on them, the court of first instance then limited its own

factual findings on the fact that the appellant works as a journalist and that he was contacting before the start of the dispute
to T-Mobile Czech Republic a.s. and to the Office for Personal Data Protection with a request
for correction. On the one hand, the decision does not reflect the questioning of the appellant (from which, according to
court of first instance, among other things: "it turned out that […] the storage of operational and location data
data is risky in that it is blanket. So people who would like to communicate with journalists have
concerns and for that reason their communication with journalists is limited or non-existent.
[...] Technical measures to secure communication bring additional costs", i.e. findings

relevant for factual conclusions regarding the damage caused), on the one hand, reflection of evidentiary proposals
by resolution of the District Court for Prague 5 of 2 March 2021, No. 1 T 93/2020-775 (on the question
possible misuse of stored data) and "maps" (on the issue of scope and possible use
personal data). It is not clear from the reasoning of the judgment whether the court of first instance these
he did the evidence at all; if he took that evidence, what findings he made from it; and if these
he did not provide evidence, for what reasons he did not do so. Reasoning of the decision of the first court
degree does not hold up and the appellant must be convinced that it is unreviewable in this part.

70. Even the appellate court did not heal this error, which (to the appellate objection that the court
the first instance essentially did not evaluate the documentary evidence provided at all, did not act in a reasoned manner
the conclusions to the claims that are proven by them, he omitted some of the documentary evidence provided

and others were not carried out at all without justification), he only frugally concluded that: "the court of the first
degree obtained sufficient factual findings for his decision, based on what was correctly established
of the facts of the case and assessed the matter correctly from a legal point of view." With the above
the appellate objections are then most intensively missed by the appellate court in point 17 of the challenged
a decision in which it states that the plaintiff: “did not allege or prove anything about how
in a specific way and in what intensity this violation of rights manifested itself in his personal sphere".
Such a conclusion cannot be made without first dealing with the appellant's objections regarding

evidentiary defects during the proceedings before the court of first instance. Even the Court of Appeal did not stand up to it
of its duty to properly justify its decision in this regard and adequately within the given framework
to deal with the argumentative claims made by the parties to the proceedings (cf. e.g. award
of the Constitutional Court of 10 December 2014, file no. stamp IV. ÚS 919/14, point 13, and the jurisprudence there
cited, or the judgment of the Supreme Court of 15 July 2015, file no. stamp 28 Cdo 4458/2014).

On the need to turn to the Court of Justice and on the subsequent procedure of the courts

71. The Supreme Court, aware of its obligation under Article 267 of the TFEU to turn to the Court of Justice
in the event that a (so-called preliminary) question of the interpretation of adopted acts arises in the proceedings before him

17 bodies of the European Union, finally examined whether such an obligation also arose in the present case
things.

72. From the point of view of the obligation of the court of a Member State, whose decision cannot be challenged
remedies under national law, apply to the CJEU for a decision
on the preliminary question, is the key judgment of the Court of Justice of 6 October 1982, in case 283/81,
Srl CILFIT and Lanificio di Gavardo SpA v Ministero della sanità, in which the Court
formulated three exceptions where national courts of last instance do not have this obligation, namely
if:

a) the question of Union law is not significant (relevant) for the solution of the given case;

b) there is a settled jurisprudence of the Court of Justice on the given question or judgment
of the Court of Justice concerning a fundamentally identical question (the so-called acte éclairé);
c) the only correct application of Union law is so obvious that there is no room for

any reasonable doubt (so-called acte clair). In doing so, the court of the Member State
state could state that the interpretation of EU law is obvious, it must a) compare
individual language versions of the text, b) use terminology and legal concepts of the Union
rights, c) take into account differences in the interpretation of EU law, d) be convinced that
its interpretation is equally apparent to the courts of other Member States and to the Court of Justice
European Union.

73. With the exception of the cases mentioned above, the national courts of the member states also decide
in the last instance, they do not have to submit a preliminary question to the Court of Justice, if they are given
grounds of inadmissibility which are related to proceedings before a national court, provided that
that the principles of equivalence and effectiveness are observed (cf. judgments of the CJEU from days

14/12/1995, in joined cases C-430/93 and C-431/93, van Schijndel and van Veen, point 17, of
on 15/03/2017, in case C-3/16, Aquino, point 56, or of 6/10/2021, in case C-561/19,
Consorzio Italian Management e Catania Multiservizi, point 61).

74. In the case under consideration, the Supreme Court did not find the need to reverse at this stage of the proceedings
to the Court of Justice, as the appellant raised a preliminary question of national compliance
legislation with EU law is not relevant at this stage of the proceedings for the resolution of the matter, because this
the decision does not definitively address the issue of violation of EU law.

75. The Court of Appeal, as well as the Court of First Instance, rejected the claimed claim for reasons
not related to the question mentioned above; they have not dealt with this question at all for the time being (however
should have done correctly). For this reason, however, the definitive resolution of the issue of violation of EU law
it cannot be subject to appellate review, as the Supreme Court is a court exclusively
reviewer, and thus cannot be the first court in this proceeding, which the corresponding legal
assessment of the disputed issue of violation of EU law will be made (cf. judgments of the Supreme Court of
31/01/2023, sp. stamp 23 Cdo 3114/2021, dated 27 November 2019, file no. stamp 32 Cdo 6012/2017, or

dated 7 December 2015, file no. stamp 32 Cdo 4421/2013). As part of the cassation decision, yes
The Supreme Court can oblige lower courts to do so in subsequent proceedings
they dealt with a still unresolved legal issue, but in principle he should not file at the same time
own assessment of this issue; among other things because for the assessment of a "new" question it can be
also relevant is the corresponding "new" procedural activity of the parties to the dispute, including submission
other claims or evidentiary proposals, which, however, are fundamentally excluded in appeal proceedings.
In summary, the above means that, given the current procedural situation,

the CJEU's answer, whatever it might be, did not have grounds for cassation of judgments of lower instances
no influence.
76. In subsequent proceedings, the general courts will thus have to deal with the issue of compliance

national legislation regarding the mandatory collection and storage of operational

18 30 Cdo 3909/2023

and location data and requirements based on EU law. In addition, the Supreme Court
reminds that the court must sufficiently explain its legal considerations in the justification
with possible citation of published jurisprudence (or opinions of jurisprudence). If the participant argues
management opinions of jurisprudence or jurisprudence, must be the general court with opinions in these sources
listed, properly argue, possibly even by explaining why he does not consider them to be in favor

the matter in question as relevant (which, after all, the courts in the considered proceedings should also have done in relation
to the question of the state's responsibility for legislative activity, as it results from a special regime
from EU law in this regard, the appellant referred, including the proper indication of the relevant
jurisprudence, already in the original lawsuit). Only then can the justification of the court's decision be convincing
and only in this way can it legitimize the decision itself in that the correct interpretation of the law is just that
the interpretation chosen by the court (cf. e.g. the decision of the Constitutional Court of 17 August 2005, file no.
I. ÚS 403/03, or also judgments of the Supreme Court of 20 June 2018, file no. stamp 30 Cdo 4754/2017,

and dated 3 December 2009, file no. stamp 30 Cdo 2811/2007). In subsequent proceedings, there will be courts
have to deal in detail with the decision-making practice of the Court of Justice. If there is a certain k
case law of the European Court relevant to the issue and binding on national courts, it is necessary from such
based on jurisprudence (without the need to interpret identical or similar questions, if
the existing jurisprudence provides sufficient answers applicable to the assessed procedure, ask
of the Court of Justice again).

77. The Court of Justice in its judgment of 8 April 2014, in joined cases C-293/12
and C-594/12, Digital Rights Ireland Ltd, declared the European Parliament Directive invalid
and of the Council 2006/24/EC of 15 March 2006 on the storage of data created or processed
in connection with the provision of publicly available electronic communications services or

public communication networks and on the amendment of Directive 2002/58/EC, which provided legal
the basis for the retention of operational and location data (and from which the still effective
Act on Electronic Communications). The Court of Justice in this decision unequivocally
he emphasized that this directive, later canceled by him, represented a very extensive and particularly serious one
interference with fundamental rights enshrined in Articles 7 and 8 of the EU Charter without such interference
precisely defined by provisions to guarantee that it is indeed limited to what is necessary
minimum. Thus, the Directive did not provide sufficient guarantees to ensure effective protection

stored data against the risk of misuse or against all unauthorized access
to data and their illegal use, which is required by Article 8 of the EU Charter.
78. The consequences of the invalidity of this directive were subsequently specified by the Court of Justice in a number of decisions,

of which the following is served in particular:
79. First, EU law prevents such legislative measures, which for the purpose of combating
serious criminal activities and preventing a serious threat to public safety as a preventive measure
provides for general and indiscriminate storage of operational and location data (cf. judgments

CJEU of 21/12/2016, in joined cases C-203/15 and C-698/15, Tele2 Sverige, points
97–112, dated 6/10/2020, in case C-511/18, C-512/18 and C-520/18, La Quadrature du Net,
points 141–142, dated 6/10/2020, in case C-623/17, Privacy International, point 59, dated
2/3/2021, in case C-746/18, Prokuratuur, point 30, of 5/4/2022, in case C-140/20,
Commissioner of An Garda Síochána, paras 65-66, dated 20/09/2022, in joined cases
C-793/19 and C-794/19 SpaceNet, and Telekom Deutschland, points 74 and 131, dated 20/09/2022,

in the joined cases C-339/20 and C-397/20, VD and SR, points 92 and 93, dated 17 November 2022, in
case C-350/21, Spetsializirana prokuratura, points 42 and 43, or from 7 September 2023, in the case
C-162/22, Lietuvos Respublikos Generalinė prokuratūra, point 31).
80. At the same time, for general and indiscriminate storage of operational and location data

neither can the strict setting of the obligations of providers of electronic communications services
to ensure the security and protection of the data stored by them, as well as national legislation
ensuring full compliance with the conditions of access to stored data arising

19 of the jurisprudence interpreting Directive 2002/58 (including the establishment of authorities called to supervise
such storage), limit or even remedy a serious interference with the rights guaranteed
Articles 5 and 6 of Directive 2002/58 and to the fundamental rights which these articles embody,
which would result from the general retention of this data established by national law
by modification (cf. judgment of the CJEU of 17 November 2022, in case C-350/21, Spetsializirana

prosecutor's office, points 58 and 59).
81. Widespread and indiscriminate storage of operational and location data is thus according to the CJEU
admissible only in situations where the state faces a serious threat to national security, which

appears to be actual and current or foreseeable, whereas an order for such retention must
to be issued only for the period absolutely necessary, but with the possibility of extension, while the decision
the imposition of this order may be subject to effective judicial or independent review
by an administrative body (cf. judgments of the CJEU of 6 October 2020, in case C-511/18, C-512/18
and C-520/18, La Quadrature du Net, paragraph 168, of 20/09/2022, in joined cases
C-793/19 and C-794/19, SpaceNet and Telekom Deutschland, point 72, or dated 04/05/2022,
in Case C-140/20, Commissioner of An Garda Síochána, para 58).

82. On the other hand, Directive 2002/58 does not prevent the targeted retention of operational data
and location data, which is defined on the basis of objective and non-discriminatory criteria
by categories of affected persons or by means of a geographical criterion, but for a time
absolutely necessary, but with the possibility of extension, and does not prevent the possibility of ordering by decision

competent authority subject to effective judicial review to service providers
electronic communications to carry out accelerated preservation of operational data for a specified period of time
and location data at their disposal (cf. judgments of the CJEU of 20 September 2022, in the connected
cases C-793/19 and C-794/19, SpaceNet and Telekom Deutschland, paragraph 75, or from
7 September 2023, in case C-162/22 Lietuvos Respublikos Generalinė prokuratūra, point 31).

83. In subsequent proceedings, it will be the task of the court of first instance to assess how specifically
the above-mentioned jurisprudential conclusions correspond or, on the contrary, are contradicted by the Czech national regulation
contradicted by the appellant. Since this question has not yet been the subject of proceedings,
it will also be necessary to allow the parties to the proceedings to add their own towards this question
argumentation (even after possible instruction according to Section 118a, paragraphs 1 and 3 of the Civil Code).

84. In the end, it will not be decisive for the conclusion about the inconsistency of national regulation and EU law
the fact that the proposal to repeal the relevant provisions of the Electronic Communications Act
and the Act on the Police, the Constitutional Court rejected with its decision of 14 May 2019, file no. stamp

Pl. ÚS 45/17. They remain the reference framework for the review of the Constitutional Court even after accession
of the Czech Republic to the European Union of the norms of the constitutional order of the Czech Republic (cf. the findings of the Constitutional
court of 8 March 2006, file no. stamp Pl. ÚS 50/04, dated 16 January 2007, file no. stamp Pl. ÚS 36/05, or
dated 29 November 2011, file no. stamp II. ÚS 1658/11, or judgment of the Supreme Court dated
26/06/2019, sp. Stamp No. 30 Cdo 3378/2018), as the task of the Constitutional Court is to protect constitutionality
(Art. 83 of the Constitution) in both its aspects, i.e. both the protection of objective constitutional law and
subjective, i.e. basic rights. It follows that EU law is not a reference criterion

assessing the constitutionality of the national regulation and that not even the actual contradiction between the directive
and the law itself cannot lead to a derogation of the legal provision in question; although it is
possible before the Constitutional Court using arguments justifying such a statement
to support the justification of unconstitutionality, if it consisted in a violation of the constitutional order
(cf. the above-mentioned ruling of the Constitutional Court file no. Pl. ÚS 36/05, or the ruling of the Constitutional Court
dated 24/02/2015, file no. stamp I. ÚS 1868/14). It cannot be overlooked that in points 74 and 79 above
of the mentioned finding sp. stamp Pl. ÚS 45/17 Court for the Protection of Constitutionality Contravention of Directive 2002/58

implicitly admits.

20 30 Cdo 3909/2023

85. Review of the unconstitutionality of provisions of the Act by the Constitutional Court is thus in essence
different (narrower) than the review of the conformity of these national provisions with Union law
by general courts, and a conclusion about one does not imply a conclusion about the other.

86. In the event that the court concludes in subsequent proceedings that the national regulation in question
does not correspond to the conditions of Directive 2002/58 as interpreted by the Court of Justice, it will be in the sense
the aforementioned decision of the CJEU in Brasserie du pêcheur SA, Factortame Ltd and others
it is necessary to examine whether this violation was sufficiently serious (to the criteria of seriousness of the violation
of EU law see above, including the cited jurisprudence).

87. In exceptional cases, incorrect implementation of a directive may not constitute
particularly serious violation (for this, cf. e.g. the judgment of the CJEU of 26 March 1996, in the matter
C-392/93, British Telecommunications, in which the Court held that there was no separate
a serious violation, since the directive itself was imprecisely worded and it was

can be interpreted in several ways, while the incorrect interpretation chosen was reasonably defensible
and it was shared by other member states, on the one hand, the interpretation of the problematic provision was not available
Court of Justice). However, if the provisions of the Directive are incorrectly implemented
clear enough, or their interpretation has been clarified by the Court of Justice, such is necessary
consider the violation to be a particularly serious violation of EU law (cf. e.g. judgments of the CJEU
of 21/12/2023, in case C-86/22, Papier Mettler Italia Srl, points 86-90, of
25/11/2010, in case C-429/09, Günter Fuß, points 51-58, of 16/10/2008, in the case

C-452/06, Synthon, points 37-46, or of 18.1.2001, in case C-150/99, Stockholm
Lindöpark, points 37-42). This is a concretization of the general conclusion according to which there is a violation
of Union law sufficiently serious where it occurred in clear contradiction with case law
Court of Justice in the given area (cf. the above-mentioned judgment of the CJEU in the Köbler case, et seq
e.g. judgments of the CJEU of 13 June 2006, in case C-173/03, Traghetti del Mediterraneo SpA,
point 43, or from 26/07/2019, in case C-620/17, Hochtief Solutions, point 43).

88. Because in view of the interpretation given above, the judgment of the Court of Appeal is not contested
correct, and since there are no conditions for stopping the appeal proceedings, for rejecting the appeal,
for the rejection of the appeal and (especially with regard to the need to supplement the evidence) nor for a change
judgment of the Court of Appeal, the Supreme Court annulled the contested judgment to the necessary extent

(§ 243e paragraph 1 o. s. ř.). Because the reasons for which the judgment of the Court of Appeal was overturned are valid
even to the judgment of the court of first instance, the Supreme Court also annulled this decision and the case
to the corresponding extent returned to the court of first instance for further proceedings (§ 243e par. 2 sentence
the second o. s. ř.). In the part where the appeal was aimed at the rejection of the action requesting the provision
apology to citizens was not found to be admissible and the Supreme Court therefore
o. s. r. refused.

89. The legal opinion expressed in this judgment is binding on the lower courts;
in the new decision on the case, it will also be necessary to decide on the reimbursement of the costs of this appeal
proceedings (Section 226 para. 1 and § 243g para. 1 part of the first sentence after the semicolon and the second sentence o. s. ř.).

Lesson: No appeal is admissible against this decision.

In Brno on 27 March 2024

L.S.

JUDr. David Vláčil v. r.
president of the senate

21

@@ Line 68: / Line 68: @@
 }}
-The Czech Supreme Court indicated that the Czech legal regime governing data retention might infringe on the right to privacy and personal data protection due to improper transposition of e-Privacy Directive. The Czech law currently allows for a data retention period of 6 months.
+The Supreme Court indicated that Czech law governing data retention might infringe the right to privacy and data protection due to an improper transposition of the e-Privacy Directive. Czech law currently allows for a data retention period of 6 months.
 == English Summary ==
@@ Line 75: / Line 75: @@
 A journalist (‘data subject’) demanded an apology in relation to himself and to the citizens of the Czech Republic (‘CZ’) from the Ministry of Industry and Trade of the CZ  (‘controller’) as a compensation for the non-material damages suffered as a result of the incorrect transposition of Directive 2002/58 of the European Parliament and of the Council /EC of 12 July 2002 on the processing of personal data and the protection of privacy in the electronic communications sector (‘e-Privacy Directive’ or ‘Directive’).
-According to the Czech law, operators of electronic communications and public networks must store a variety of user communication information for six months, primarily to aid in the investigation of criminal and misdemeanor activates. The incorrect transposition of the Directive allegedly led to the widespread collection and processing of operation and location data on the electronic communications of users.
+According to the Czech law transposing the Directive, operators of electronic communications and public networks must store a variety of user communication information for six months, primarily to aid in the investigation of criminal and misdemeanor activates. The incorrect transposition of the Directive allegedly led to the widespread collection and processing of operation and location data of users' the electronic communications.
-In this case, the data subject saw an interreference with his rights to privacy and informational self-determination. Before filing the lawsuit, the data subject tried unsuccessfully to obtain the erasure of data stored on him through a mobile operator and later through the Czech DPA.
+In this case, the data subject saw an interference with his rights to privacy and informational self-determination. Before filing the lawsuit, the data subject tried unsuccessfully to obtain the erasure of data stored on him through a mobile operator and later through the Czech DPA.
-The DPA stated that it is undisputable that the national regulation of the given issue (§ 97 paragraph 3 of Act No. 127/2005 Coll.) is not in accordance with Article 15 ePrivacy Directive. According to the Directive, Member States may enact laws to limit certain rights outlined in the Directive, including data retention, if it's necessary for national security, defense, public safety, or crime prevention, in line with EU principles.However, the controller rejected the statement of the DPA claiming that this transposition of the Directive cannot be assessed as improper official procedure according to Act No. 82/1998 Coll., on liability for damage caused in the exercise of public authority.
+The DPA stated that, in their opinion, it is indisputable that the national legislation issue (§ 97 paragraph 3 of Act No. 127/2005 Coll.) is not in accordance with Article 15 ePrivacy Directive. According to the Directive, Member States may enact laws to limit certain rights outlined in the Directive, including data retention, if it is necessary for national security, defense, public safety, or crime prevention, in line with EU principles. However, the complaint was rejected by the DPA.
-As a result, the data subject filed a lawsuit at the District Court of Prague 1 which similarly rejected the request of the data subject for an apology. It concluded that the alleged damage caused by contradiction of national legislation and EU law is only a ‘potential damage not eligible for the legal protection’. The court added that the data subject was not entitled to file a lawsuit which concerns compensation for non-material damage to all citizens.
+Nevertheless, the data subject brought the DPA's opinion to the controller's attention who rejected it claiming that this transposition of the Directive cannot be considered as 'improper official procedure' according to Act No. 82/1998 Coll., on liability for damage caused in the exercise of public authority.
-The data subject filed an appeal against this decision which was then confirmed by the Municipal Court in Prague.
+The data subject filed a lawsuit at the District Court of Prague 1 which rejected the request of the data subject for an apology. It concluded that the alleged damage caused by contradiction of national legislation and EU law is only a ‘potential damage not eligible for the legal protection’. The court added that the data subject was not entitled to file a lawsuit which concerns compensation for non-material damage to all citizens.
+The data subject filed an appeal against this decision. the Municipal Court in Prague confirmed the first instance decision.
-Finally, the data subject filed another appeal at the Supreme Court on
+Finally, the data subject filed another appeal at the Supreme Court to resolve the questions on:
-)	state responsibility for improper official procedure in case of erroneous implementation of e-Privacy Directive.
+# state responsibility for erroneous transposition of e-Privacy Directive
-)	the question of the occurrence of non-material damage
+# the question of the occurrence of non-material damage.
 === Holding ===
-To begin with, the Supreme Court confirmed the decision of the court of first instance on the part regarding the lack of legal standing for seeking protection of public interest. Such Is not afforded by the civil law.
+To begin with, the Supreme Court confirmed the decision of the court of first instance on the part regarding the lack of legal standing for seeking protection of the public interest. Such protection is not afforded by civil law and a person cannot claim damages for people that are not taking part in the procedure.
-Regarding the state responsibility for the legislative activity, the Supreme Court referred to the joint cases C-46/93 and C-48/93, Brasserie du pêcheur SA, Factortame Ltd and others. The CJEU confirmed that a violation of directly effective standards thus results in state liability for damage. Consequently, Act No. 82/1998 Coll. shall be applied reasonably only where its rules are consistent with those of EU law or cover issues not addressed by EU law, as long as it does not hinder the individual’s rights to seek compensation for damages.
+Regarding the state responsibility for the legislative activity, the Supreme Court referred to the joint cases C-46/93 and C-48/93, Brasserie du pêcheur SA, Factortame Ltd and others. The CJEU confirmed that a violation of directly effective standards thus results in state liability for damage. Consequently, Act No. 82/1998 Coll. shall be applied reasonably only where its rules are consistent with those of EU law or cover issues not addressed by EU law and as long as it does not hinder the individual’s rights to seek compensation for damages.
 The Supreme Court, therefore, recalled three conditions for the state to be liable for a violation of EU law, namely:
-)	the violated rule of EU law grants rights to the injured parties
+# the violated rule of EU law grants rights to the injured parties
-)	the violation of this rule is sufficiently serious
+# the violation of this rule is sufficiently serious
-)	there is a direct causal link between this violation and the damage suffered by the injured parties
+# there is a direct causal link between this violation and the damage suffered by the injured parties
 In relation to the damage suffered, the Supreme Court concluded that the harm to data subjects may consist of a mere "loss of control" over their own data. This is the case even if there was no actual misuse of the data in question to the detriment of said persons.
 Thus, if a data subject seeking damages on this basis argues that he fears that his personal data will be misused in the future as a result of such a breach, the national court to which the case was brought must verify that this fear may be justified.
-Regarding the data retention period, the Supreme Court said that practice of the Czech law has been consistently ruled illegal by the Court of Justice of the EU. It concluded that the EU law prevents such legislative measures which, for the purpose of combating serious criminal activity and preventing a serious threat to public security, preemptively provide for widespread and indiscriminate storage of operational and location data.
+Regarding the data retention period, the Supreme Court said that practice of the Czech law has been consistently ruled illegal by the Court of Justice of the EU (e.g. C-293/12 and C-594/12, ''Digital Rights Ireland Ltd'', C-203/15 and C-698/15, ''Tele2 Sverige''). It concluded that EU law prevents such legislative measures which, for the purpose of combating serious criminal activity and preventing a serious threat to public security, preemptively provide for widespread and indiscriminate storage of operational and location data.
 According to the CJEU, extensive storage of operational and location data is only allowed when there is a serious threat to national security. The storage order should only last as long as absolutely needed, with the chance of extending it and reviewed by a court or independent body.
-The Supreme Court has indicated that the Czech legal regime governing data retention might infringe on the right to privacy and personal data protection, directing lower courts to further examine this issue.
+The Supreme Court thus indicated that the Czech legal regime governing data retention might infringe on the right to privacy and personal data protection, directing lower courts to further examine this issue.
-The decisions of the lower courts will indicate whether retention of traffic and location data may be shortened in the CZ. In the event that the courts conclude in subsequent proceedings that the national regulation in question does not comply with the conditions of the Directive as interpreted by the CJEU, it will be necessary to examine, in accordance with the decision of the CJEU in the case of Brasserie du pêcheur SA, Factortame Ltd and others, whether this violation was sufficiently serious.
+The decisions of the lower courts will indicate whether retention of traffic and location data may be shortened in the CZ. In the event that the courts conclude in subsequent proceedings that the national regulation in question does not comply with the conditions of the Directive as interpreted by the CJEU, it will be necessary to examine, in accordance with the decision of the CJEU in the case of Brasserie du pêcheur SA, Factortame Ltd and others, whether this violation was sufficiently serious to consider the CZ liable for violation of EU law.
 == Comment ==
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+It can be assumed that the Supreme Court has invited lower courts to assess the situation in the specific cases and not apply national law where needed.
 == Further Resources ==