In a case concerning damages for unwanted email advertising as a data protection violation, the Federal Constitutional Court in Germany (BVerfG) recently ruled, that the European Court of Justice (ECJ) has to decide on the interpretation of the prerequisites and scope of Art. 82 (1) GDPR. It has to be clarified how Art. 82 (1) GDPR is to be interpreted against the background of Recital 146. In other words, under which conditions the article would grant a claim for monetary compensation.              

The plaintiff, a German lawyer, had received one (!) unintentional advertising email and sued for injunctive relief, access to the stored data and damages of at least 500 €. Whilst the District Court of Goslar (September 7, 2019 – Case No. 28 C 7/19) upheld the claim for injunctive relief and access, it refused to award immaterial damages. The judges claimed that these were not evident. Hence, the threshold for a monetary compensation for a violation of personality rights had not been exceeded. In response, the plaintiff decided to file a constitutional complaint, arguing that the decision of the District Court violated his right to the lawful judge of Article 101 (1) sentence 2 of the German Basic Law (GG). He claimed that the District Court had wrongly refrained from submitting the question of the threshold for GDPR damage claims to the ECJ for a preliminary ruling.            

In the ruling of the BVerfG, the judges now emphasized that the claim for damages under Art. 82 GDPR may not be denied just because of a minor or trivial loss. The Federal Constitutional Court underlined in fact, that the District Court would have had to make a preliminary reference to the ECJ beforehand. Hence, the plaintiff’s right to the lawful judge according to Article 101 (1) sentence 2 of the German Basic Law (GG) had been violated: the District Court did not comply with the obligation to refer the matter to the ECJ by way of preliminary ruling proceedings pursuant to Article 267 (3) of the Treaty on the Functioning of the European Union (TFEU). The District Court disregarded this obligation by interpreting European Union law itself.                

The court in Goslar must now decide anew and it can be assumed that the judges will refer the questions to the ECJ. It is to be hoped, that the European judges will define a de minimis threshold for damages due to data protection violations. At the same time, clarification of all underlying issues is not expected. However, general principles of high practical relevance can be laid down, already discussed in literature and case law.

Dario Haux

German Federal Constitutional Court, Decision of the 2nd Chamber of the First Senate, January 14th 2021, 1 BvR 2853/19 -, 1–24