In the judgment Case no. C‑507/23 of October 4, 2024 – one of many recent rulings – the ECJ has once again dealt with questions of compensation.
Following earlier rulings, he first states that a Violation against a GDPR in itself does not yet lead to any damage:
29 In the light of the foregoing, the answer to the first question is that Article 82(1) GDPR, read in conjunction with Article 8(1) of the Charter, must be interpreted as meaning that a breach of the provisions of that regulation is not in itself sufficient to constitute ‘damage’ within the meaning of Article 82(1) GDPR.
More exciting was the question of whether a Sorry for an error already adequate replacement of non-material damage. The ECJ affirms this:
31 It is settled case-law that […] it is for the national legal system […] to determine the procedural rules governing remedies […], provided, however, that, in matters governed by European Union law, those rules are not less favorable than those governing similar matters governed by national law (Principle of equivalence), and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Union law (Principle of effectiveness) […].
32 […] the national courts must, for this purpose, apply the national rules of each Member State on the extent of financial compensation […].
33 As regards compliance with the principle of equivalence, the Court has no indication that that principle could have a concrete effect in the dispute in the main proceedings.
34 As regards compliance with the principle of effectiveness, […] requires that the criteria for the assessment of […] damages be determined within the legal order of each Member State, and that such damages be complete and effective […].
35 The Court has also recognized that, in the absence of seriousness of the harm suffered by the person concerned, a national court may compensate that person by awarding him a minor damages provided that the small amount of damages awarded is suitable to compensate the damage in full […].
36 Article 82(1) GDPR also does not preclude an apology from constituting independent or supplementary compensation for non-material damage […], provided that such a form of compensation complies with the principles of equivalence and effectiveness, in particular since it must make it possible to fully compensate for the non-material damage specifically caused by the infringement of this Regulation […].
37 In light of the above, the answer to the second question is that Article 82(1) GDPR must be interpreted as meaning that an apology may constitute adequate compensation for non-material damage on the basis of this provision […].
Since the Swiss DPA does not consider immaterial damage to be compensable or damage (with exceptions not relevant here and subject to satisfaction), the ruling is not prejudicial for Switzerland, but compensation for real damage is also recognized under Swiss law. However, the case shows that honest communication can have a risk-reducing effect.
As previously, the ECJ also states that “the attitude and motives” of the person responsible cannot be a factor in the assessment of compensation, because it is a matter of compensation and not punishment.