BVerfG: Obli­ga­ti­on to refer the que­sti­on of whe­ther a mate­ria­li­ty thres­hold applies to claims for dama­ges under the GDPR

The Ger­man Fede­ral Con­sti­tu­tio­nal Court (BVerfG) recent­ly (decis­i­on of Janu­ary 14, 2021, AZ 1 BvR 2853/19) in con­nec­tion with the mate­ria­li­ty thres­hold for claims for dama­ges under the GDPR. This was prompt­ed by a ruling of the Gos­lar Local Court, which – for pro­ce­du­ral rea­sons, as the court of last instance – had deci­ded that the plain­ti­ff was entit­led to no cla­im for dama­ges to. The plain­ti­ff, a lawy­er, had deman­ded com­pen­sa­ti­on under Art. 82 GDPR of at least EUR 500 for an unso­li­ci­ted com­mer­cial email.

Accor­ding to the BVerfG, this ruling vio­la­tes the plaintiff’s right from Artic­le 101 (1) of the Ger­man Basic Law (“No one may be depri­ved of his lawful judge”): The Local Court should not have jud­ged the que­sti­on of the de mini­mis thres­hold at last instance, but should have refer­red this que­sti­on to the ECJ for a preli­mi­na­ry ruling. A duty to refer exists if the natio­nal court is faced with a que­sti­on of Uni­on law that has not alre­a­dy been the sub­ject of an inter­pre­ta­ti­on by the Court of Justi­ce (“acte éclai­ré”) and the cor­rect appli­ca­ti­on of Uni­on law is at the same time not so obvious that the­re is no room for rea­sonable doubt (“acte clair”). Neither was the case here:

Accor­ding to Artic­le 82(1) of the GDPR, any per­son who has suf­fe­r­ed mate­ri­al or non-mate­ri­al dama­ge as a result of a breach of the GDPR is entit­led to com­pen­sa­ti­on from the con­trol­ler […] This Mone­ta­ry com­pen­sa­ti­on cla­im has been estab­lished in the case law of the Court of Justi­ce of the Euro­pean Uni­on it has not been exhaus­tively cla­ri­fi­ed, nor can it be deter­mi­ned direct­ly from the GDPR in its indi­vi­du­al con­di­ti­ons neces­sa­ry for the assess­ment of the facts pre­sen­ted in the main pro­ce­e­dings. Even in the lite­ra­tu­re available so far, which in view of reci­tal 146 is pro­ba­b­ly in favor of a broad under­stan­ding of the con­cept of dama­ge, the details and the exact scope of the cla­im are still unclear […]. The Local Court could also not assu­me a cor­rect appli­ca­ti­on of Uni­on law, which is so obvious that the­re would be no room for rea­sonable doubt (acte clair). This is all the more true sin­ce Art. 82 GDPR express­ly inclu­des non-mate­ri­al damages.

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