ECJ To Clarify Concept of Non-Material Damage under GDPR

Nov 3, 2023 Benn-Ibler Rechtsanwälte

The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has asked the European Court of Justice (ECJ) to answer questions on the right to an injunction under EU law and the concept of immaterial damage under the GDPR.

The plaintiff was involved in a job application process with the defendant private bank, which took place via an online portal. In the course of the application process, one of the defendant’s employees sent a message via the portal’s messenger service, which was intended only for the plaintiff and also a third person (who was not involved in the application process but who had worked with the plaintiff some time previously in the same holding company and therefore knew him). The message stated, among other things, that the defendant would not be able to meet the plaintiff’s salary expectations. The plaintiff considered this to be an unacceptable abuse of discretion. It was to be feared that the third party, who worked in the same industry, had passed on the data contained in the message or had gained an advantage by knowing him as a competitor for possible positions in the application process.

The plaintiff therefore brought an action against the defendant for the disclosure of personal data, seeking an injunction and compensation for non-material damage. The regional court granted the claim in part. However, the court of appeal dismissed the claim.

The BGH has now stayed the proceedings and referred them to the ECJ for a preliminary ruling on the interpretation of the provisions of the GDPR regarding the existence of a right to injunctive relief under EU law for the data subject whose personal data have been unlawfully disclosed by the data controller through onward transmission, and on the concept or criteria of non-material damage.

One of the questions to be answered is whether mere negative feelings such as anger, displeasure, dissatisfaction, worry, and fear, which in themselves are part of the general risk of life, are sufficient for the presumption of non-material damage, or whether the presumption of damage requires a disadvantage to the natural person concerned that goes beyond these feelings.

Press Release No. 162/2023 on BGH VI ZR 97/22 (26 September 2023)