ECJ Advocate General: No Compensation in Data Scandal

Nov 25, 2022 Benn-Ibler Rechtsanwälte

The Advocate General stated concerning an Opinion issued by the European Court of Justice (ECJ) that, for the recognition of a claim for compensation for damage suffered by an individual as a result of a breach of the General Data Protection Regulation (GDPR), the mere breach of the regulation as such is not sufficient if there is no corresponding material or non-material damage.

The Austrian Supreme Court had referred the case to the ECJ with the aim of clarifying whether a violation of the General Data Protection Regulation was sufficient for a claim for compensation or whether the affected individual needed to have suffered a specific damage. Furthermore, clarification was needed as to exactly what is considered as damage.

In his Opinion, Advocate General Manuel Campos Sánches-Bordona explained that a mere violation of the GDPR is not sufficient to justify a claim for damages. In principle, immaterial damages are compensable, but ‘feeling annoyed’ does not extend to the compensation of immaterial damages regulated in the GDPR. Accordingly, the Austrian plaintiff cannot hope for damages with regard to the data scandal at Austrian Post.

In the event of a breach of the GDPR, the Advocate General referred to other options for affected individuals to respond, for example, through complaints to a supervisory authority or via their right to have their data deleted. According to Sánches-Bordona, it is up to the national courts to work out when an individual’s subjective feeling of displeasure can be considered as damage and would require a case-by-case decision.

The ECJ's ruling is expected in the coming months, with the final decision on damages resting with national courts.

ECJ, C-300/12 (6 October 2022)