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.