Opinion of the Advocate General — ECLI:EU:C:2024:291
Date: 2024-04-11
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of my analysis, I will answer the question put by the referring court concerning the possibility of the supervisory authority refraining from taking corrective action. B. Admissibility of the request for a preliminary ruling 27. Before examining all those aspects, it is necessary to address TR’s argument that the request for a preliminary ruling is inadmissible. More specifically, TR submits that an answer to the question posed is not necessary in order to decide the dispute in the main proceedings. He argues that his action merely asks the referring court to order the HBDI to rule on the objections raised in the complaint before it, and not for the HBDI to be ordered to make use of the powers conferred by Article 58(2) of the GDPR. 28. In that regard, it must be observed that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling. (4) 29. It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court of Justice to determine, enjoy a presumption of relevance. The Court of Justice may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (5) 30. In the present case, the national court, while clearly setting out the reasons why it has doubts as to the interpretation of the provisions of EU law referred to in its question for a preliminary ruling, states that the answer to that question is decisive for the outcome of the main proceedings, in so far as TR asked the HBDI to take action against the savings bank. As is apparent from the statement of reasons contained in the request for a preliminary ruling, TR had asserted a ‘right’ to demand such action. In particular, in TR’s view, ‘the HBDI should have fined the savings bank’. It is in that context that the referring court refers to the calculations made by TR to determine the amount of the fines to be imposed. 31. All that information, provided by the referring court, clearly contradicts TR’s claims as to the alleged inadmissibility of the request for a preliminary ruling. In the light of those circumstances, there is, in my view, no doubt that a response to the question referred by the referring court is necessary in order for judgment to be given. It is essential to establish the scope of the supervisory authority’s powers and its obligations towards the complainant. Consequently, the request for a preliminary ruling is admissible. C. Consideration of the question referred 32. As regards the substance, the question referred for a preliminary ruling seeks to determine, in essence, what the supervisory authority’s obligations are when a personal data breach has been detected. Such a situation usually occurs when the breach in question has been established in the course of an investigation initiated following a complaint. 33. The statements of the referring court reveal some vagueness as regards the obligations which the GDPR imposes on the supervisory authority when investigating a complaint, which is explained, in my view, by the fact that the request for a preliminary ruling was made before delivery of the SCHUFA judgment (6), in which the Court established a number of important principles governing the complaints procedure. It is therefore reasonable to assume that the referring court did not have the opportunity to become acquainted with that case-law. 34. With a view to presenting as fully as possible the legal framework relating to the supervisory system established by the GDPR and in order to provide a useful response to the referring court, I consider it essential to recall, first, the principles applicable to the complaints procedure (7) and to explain, second, how a supervisory authority should proceed when it has identified a personal data breach. (8) 1. Obligations of the supervisory authority when handling a complaint 35. As the Court of Justice held in the judgment in SCHUFA, in accordance with Article 8(3) of the Charter and Article 51(1) and Article 57(1)(a) of the GDPR, the national supervisory authorities are responsible for monitoring compliance with the EU rules concerning the protection of natural persons with regard to the processing of personal data. (9) 36. In particular, under Article 57(1)(f) of the GDPR, each supervisory authority is required on its territory to handle complaints which, in accordance with Article 77(1) of that regulation, any data subject is entitled to lodge where that data subject considers that the processing of his or her personal data infringes the regulation, and is required to examine the nature of that complaint as necessary. (10) 37. The supervisory authority must deal with such a complaint with all due diligence. The Court of Justice has also held that, in order to handle complaints lodged, Article 58(1) of the GDPR confers extensive investigative powers on each supervisory authority. (11) 38. In that context, it should be noted that the Court of Justice endorsed the interpretation that I put forward in my Opinion in the SCHUFA cases, that the complaints procedure, which is not similar to that of a petition, is designed as a mechanism capable of effectively safeguarding the rights and interests of data subjects. (12) 39. Furthermore, it should be noted that the Court also shared my interpretation of Article 78(1) of the GDPR, by holding that a decision on a complaint adopted by a supervisory authority is subject to full judicial review. (13) 2. Obligations of the supervisory authority when a personal data breach is identified 40. When the supervisory authority finds a personal data breach in the course of investigating a complaint, the question then arises as to how it should proceed. As I will explain below, such a finding results, first, in an obligation for the supervisory authority to take action in the interests of the principle of legality. Generally speaking, that means identifying the most appropriate corrective measure(s) in order to address the infringement. (14) Such an interpretation seems to me to be a reasonable one, given that Article 57(1)(a) of the GDPR entrusts the authority with the task of ‘monitor[ing] and enforc[ing] the application of [the] Regulation’. It would be incompatible with that mandate for the supervisory authority to have the option of simply ignoring the infringement detected. (15) 41. Moreover, the supervisory authority’s investigative powers under Article 58(1) of the GDPR would be of little value if the supervisory authority were forced to confine itself to carrying out an investigation even where a personal data breach had been found. Enforcement of EU law on personal data protection is an essential component of the notion of ‘control’ included in Article 16(2) TFEU and Article 8(3) of the Charter. (16) In that context, it should not be forgotten that the supervisory authority also acts in the interests of the person or entity whose rights have been infringed. In that regard, it should be noted that Article 57(1)(f) and Article 77(2) of the GDPR impose certain obligations with regard to the complainant, namely to ‘inform the complainant of the progress and the outcome of the investigation’. 42. That final phrase implies that the supervisory authority must also report on the measures taken in relation to the personal data breach it has identified. Clearly, the complaints procedure would serve no purpose if the supervisory authority could remain passive in the face of a legal situation contrary to EU law. For that reason, in order to give the supervisory authority an effective means of dealing with breaches of such a kind, Article 58(2) of the GDPR sets out a list of corrective measures, graduated by the extent of the intervention. The obligation to intervene in all cases, whatever the severity of the breach means that the supervisory authority must have recourse to that list of corrective measures in order to bring the situation back into compliance with EU law. (17) 3. The supervisory authority’s power to adopt corrective measures 43. Having said that, it must be made clear that the question of whether the authority should intervene in the event of a personal data breach must be clearly distinguished from the question of specifically how it should act. With regard to the latter question, there are a number of indications that the supervisory authority has a degree of latitude, which must nevertheless be exercised in accordance with the objectives of the GDPR and within the limits set by it. Although I have already presented a number of arguments in support of such an interpretation in the SCHUFA cases, (18) it is nevertheless necessary to address the issue in detail in the present Opinion. 44. At the outset, it should be observed that, pursuant to Article 58(2) of the GDPR, the supervisory authority ‘shall have … the … powers’ to adopt all the corrective measures listed in that provision, which means that an option exists, as the referring court rightly points out. Moreover, that connotation is found in all the language versions that I examined as part of my analysis. (19) 45. Article 58(2) of the GDPR must be interpreted in the light of recital 129 of that regulation, which states that ‘each measure should be appropriate, necessary and proportionate in view of ensuring compliance with this Regulation, taking into account the circumstances of each individual case’ (emphasis added). In other words, the ‘power’ conferred on the supervisory authority to have recourse to the list of corrective measures set out in that provision is subject to various conditions, including the condition that the measure taken by the authority must be ‘appropriate’. I interpret that indeterminate legal concept, which confers on the authority a degree of latitude, as meaning that the measure chosen must be capable, by virtue of its properties and mode of action, of bringing the situation back into compliance with EU law. (20) 46. That interpretation is in line with the case-law of the Court of Justice, which has held that, where a supervisory authority finds that the processing of personal data has infringed the GDPR, ‘it is required to react appropriately in order to remedy the shortcoming found’. (21) As the Commission observes, the obligation imposed on the supervisory authority therefore relates first and foremost to the result to be achieved, namely remedying the infringement found, by adopting a measure that is ‘appropriate’ for that purpose. Furthermore, it should be noted that the decision as to the measure to be taken depends on the specific circumstances of each individual case, as is clear from the abovementioned recital 129 of the GDPR. Consequently, the decisions taken by the supervisory authority in the context of its administrative practice may vary significantly from case to case, depending on the situation. 47. In so far as Article 58(2) of the GDPR merely states that each supervisory authority ‘shall have […] the […] powers’ to adopt all the corrective measures listed in that provision, the supervisory authority enjoys a degree of latitude in that it is, in principle, free to choose from among those corrective measures in order to remedy the infringement found. As the Court of Justice emphasised in its judgment in Case C‑311/18 (Facebook Ireland and Schrems), ‘the supervisory authority must determine which action is appropriate and necessary’, and in doing so must take into consideration all the circumstances of the specific case. (22) 48. The granting of a discretionary power also implies, in my view, the power not to take any of the corrective measures referred to in Article 58(2) of the GDPR, where such an approach is justified by the specific circumstances of the individual case. Since recourse to the list of corrective measures is also subject to the condition that the measure in question is ‘necessary’ in view of ensuring compliance with that regulation, it cannot be ruled out that a specific intervention on the part of the supervisory authority might not meet that condition, for example if the problem had in the meantime been resolved or overcome and the infringement had ceased to exist. Clearly, intervention by the supervisory authority would be meaningless in such circumstances. 49. Similarly, as the Portuguese Government rightly points out, recourse to corrective measures may no longer be justified if the conduct of the controller or processor is manifestly not very reprehensible, or if the case presents mitigating circumstances, for example because the complainant bears some share of responsibility. However, that presupposes that the supervisory authority has the power to set a threshold below which an intervention is not considered ‘necessary’ within the meaning of the GDPR. 50. In that context, I would like to draw attention to recital 141 of the GDPR, which expressly refers to the possibility of the supervisory authority deciding not to act in cases where it considers that action is not ‘necessary’ in order to guarantee protection of the data subject’s rights (‘where [it] does not act where such action is necessary’) (emphasis added). That recital specifies that the supervisory authority’s decision is also subject to judicial review in the event that the complainant does not agree with the supervisory authority’s assessment of the ‘necessity’ of taking action, in addition to the other scenarios listed in the recital, namely where the complainant’s rights under that regulation are infringed or where the supervisory authority does not act on a complaint or partially or wholly rejects or dismisses a complaint. 51. The discretion granted to the supervisory authority under Article 58(2) of the GDPR implies that minor breaches may also be remedied by other measures taken by the controller itself. As the circumstances of the present case demonstrate, corrective measures to be taken by the undertakings responsible ‘autonomously’ may consist in the adoption of disciplinary measures against employees who have committed infringements. In circumstances where liability for the infringement has been accepted and in which it has been ensured that a further data breach will not occur, the imposition by the supervisory authority of further corrective measures may appear unnecessary. 52. In certain circumstances, it may even prove to be counter-productive to use the power to adopt corrective measures against a controller, if that is neither appropriate nor necessary. If the supervisory authority were obliged to use the powers to adopt corrective measures provided for in Article 58(2) of the GDPR in every case of infringement, that would result in a reduction in the resources available for monitoring other cases and tasks which merit more attention with regard to data protection. Accordingly, I consider that recourse to ‘autonomous’ measures taken by the controller itself would enable the supervisory authority to focus on serious cases that deserve priority, while ensuring that personal data breaches may be continuously combated in a decentralised manner, namely through a partial delegation of its tasks. 53. If the supervisory authority chooses to refrain from applying the corrective measures set out in Article 58(2) of the GDPR, while favouring recourse to ‘autonomous’ measures taken by the controller, it seems to me that some legal requirements must nevertheless be complied with. In the first place, there should be a requirement for the supervisory authority to give its express consent to such a measure in order to avoid any circumvention of the supervisory system put in place by the GDPR. In the second place, such consent should be preceded by a rigorous examination of the situation in the light of the conditions set out in recital 129 of the GDPR, so as not to relieve the supervisory authority of its responsibility to ensure compliance with the regulation. In the third place, the agreement with the entity that is to carry out the ‘autonomous’ measure should provide for the supervisory authority’s right to intervene if its instructions are not complied with. If the Court of Justice were to agree with such an interpretation and to hold that such ‘autonomous’ measures are, in principle, compliant with the GDPR, I believe that the Court should also insist on the need to comply with the abovementioned requirements in the interests of ensuring that the supervisory system is coherent. 54. Since Article 58(2) of the GDPR grants discretion to the supervisory authority as regards the choice of the ‘appropriate’ corrective measure in a particular case, it is logical to rule out any right on the part of the complainant to require the adoption of a specific measure. Although the complainant has certain rights with regard to the supervisory authority in the context of the procedure, in particular the right to be informed of the progress and outcome of the investigation within a reasonable period, those rights do not include the right to require the adoption of a specific measure. 55. Nor can such a right be inferred from the fact that the complainant enjoys the right to an effective judicial remedy against a supervisory authority under Article 78 of the GDPR, since the authority’s main obligation towards the complainant in the context of the complaints procedure is to give sufficiently precise and detailed reasons for its decision whether or not to intervene in the case, taking into account the findings made in the course of the investigation carried out by the authority. 56. Furthermore, it should be noted that, pursuant to Article 78(2) of the GDPR, a judicial remedy may be requested on the grounds that the competent supervisory authority has not handled the complaint or has not informed the data subject, within three months, on the progress or outcome of a complaint lodged pursuant to Article 77 of that regulation. However, it should be noted that none of the grounds mentioned indicate that the data subject has any subjective right to request the adoption of a specific measure in the context of a judicial review. 57. The same applies to the possibility, referred to in recital 141 of the GDPR, of seeking a judicial remedy by challenging the supervisory authority’s assessment of the ‘necessity’ of taking action to protect the rights of the data subject. Even if the ‘necessity’ for action in a particular case were ultimately to be established by the competent court, that does not necessarily mean that a specific measure would have to be adopted by the supervisory authority. Rather, the supervisory authority would be obliged to exercise its discretion, where appropriate, taking into account the assessment by the court. 58. It should nevertheless be made clear that it is also possible that the supervisory authority, as an administrative organ, will be forced to adopt a certain measure on account of the particular circumstances of the case, especially where there is a serious risk of an infringement of the fundamental rights of the data subject. I referred specifically to that scenario in my Opinion in the SCHUFA cases. (23) The present request for a preliminary ruling thus offers the opportunity to further explore the subject. 59. In that regard, it is appropriate to recall, first of all, the judgment in Case C‑311/18 (Facebook Ireland and Schrems), in which the Court of Justice suggested that such a situation might indeed exist. More specifically, the Court of Justice held that the supervisory authority is required, where appropriate, to take some of the measures listed in Article 58(2) of the GDPR, in particular where it considers that the protection required by EU law cannot be ensured by other means. Consequently, to that extent, the supervisory authority’s discretion is confined to some or even, where appropriate, to one of the measures referred to in that provision. (24) 60. As the Austrian Government rightly points out, there may be a multitude of similar cases requiring the adoption of a specific corrective measure, such as where the supervisory authority finds, in the context of a complaints procedure, that there is an obligation to erase data and that the controller has not yet done so. In the situation described, the supervisory authority will be obliged, in any event, pursuant to Article 58(2)(g) of the GDPR, to order erasure. 61. The examples mentioned in the preceding paragraphs show that it cannot be ruled out that, depending on the specific circumstances of the particular case, only the adoption of a specific corrective measure would bring the situation back into compliance with EU law. In particular, it seems to me that, in circumstances where there would otherwise be a risk of a serious breach of the data subject’s rights, the supervisory authority’s discretion could be confined to adopting the only measure that is appropriate to protect that data subject’s rights. 62. Any other interpretation would, in my view, be incompatible with the obligation to ensure respect for the fundamental rights of the Charter, by which, pursuant to Article 51(1) of the Charter, the authorities of the Member States are bound when implementing EU law. That obligation is also incumbent on the supervisory authorities, as follows from Article 58(4) of the GDPR. (25) Seen in that light, it is reasonable to argue that EU law grants the data subject a subjective right to demand that the authority adopt the measure in question. However, I wish to emphasise that, in the present case, I see no indication that the conditions for such a limitation of the supervisory authority’s discretion are met. 63. In summary, it should be noted that a supervisory authority to which a complaint has been referred under Article 77 of the GDPR is required, where it finds that there has been a breach of the rights of the data subject, to take appropriate action to remedy the inadequacies identified that still exist and to ensure that the rights of the data subject are protected. Where the supervisory authority intervenes in that regard, it is required to choose the appropriate, necessary and proportionate measure from among the measures referred to in Article 58(2) of that regulation. Discretion in the choice of means is thus limited where the protection required can only be ensured by taking specific measures. 4. No obligation imposed on the supervisory authority to impose administrative fines in all cases 64. Following the above general statement regarding the supervisory authority’s power to adopt corrective measures, it is necessary to consider whether the supervisory authority is obliged to impose administrative fines in all cases. Although the foregoing observations may have clarified certain aspects of the issue, a few further explanations appear to me to be necessary. Although the EU legislature included administrative fines among the ‘corrective measures’ set out in Article 58(2) of the GDPR, such measures nonetheless have a number of special characteristics compared with other measures. For that reason, this part of the analysis will focus on the specific rules set out in Article 58(2)(i) and Article 83 of that regulation. 65. As the Court of Justice has recently pointed out, administrative fines are part of the system of sanctions put in place by the GDPR, providing an incentive for controllers and processors to comply with that regulation. Through their dissuasive effect, administrative fines contribute to strengthening the protection of natural persons with regard to the processing of personal data, and are therefore a key element in ensuring respect for the rights of those persons, in accordance with the purpose of that regulation, which is to ensure a high level of protection for such persons with regard to the processing of personal data. (26) 66. Article 83 of the GDPR provides for a two-tier system, explicitly stating that certain breaches are more serious than others. The first tier includes infringement of the articles governing the responsibilities of the various players (controller, processor, certification bodies, and so forth). The second tier includes breaches of individual rights protected by that regulation, such as fundamental rights, the basic principles of processing, data subjects’ rights to information, rules on data transfer, and so on. In both tiers, two assessments must be carried out: one to decide whether to impose a fine and the second to decide on the amount of the administrative fine. In both assessments, the supervisory authorities must consider all the individual factors listed in Article 83(2) of that regulation. However, the conclusions reached in the first stage of the assessment may be used in the second step concerning the amount of the fine, thereby avoiding the need to make a second assessment using the same criteria. (27) 67. Having set out the foregoing preliminary explanations, I will now consider the issue of the possible obligation to impose administrative fines in all cases. In that regard, it should be noted, from the outset, that Article 58(2)(i) of the GDPR provides that the supervisory authority may impose an administrative fine ‘depending on the circumstances of each individual case’. That provision should be read together with Article 83(2) of that regulation, which not only provides for the same restriction on the application of such a corrective measure, but suggests that the supervisory authority may even refrain from doing so (‘when deciding whether to impose an administrative fine’) (emphasis added) if the circumstances justify such an approach. The same wording is found – in more or less similar terms – in other language versions. (28) In short, the wording of Article 83(2) of the GDPR itself indicates that it is not mandatory in all cases to impose an administrative fine. 68. Moreover, it should be noted that that provision requires the supervisory authority to take account, in each individual case, of various factors when deciding whether to impose an administrative fine. Those factors are circumstances – which may be aggravating or mitigating – that influence the decision of the supervisory authority, such as the nature, gravity and duration of the infringement, but also circumstances relating to the conduct of the controller, such as whether the infringement was committed intentionally or negligently. (29) 69. In that context, the second and third sentences of recital 148 seem to me to be relevant for the purposes of interpreting Article 83(2) of the GDPR, in so far as they give indications as to the characteristics which should be taken into account in reaching a decision. The recital introduces the concept of a ‘minor infringement’, which has significant consequences for the administrative practice of the supervisory authority. (30) It states, inter alia, that ‘in a case of a minor infringement or if the fine likely to be imposed would constitute a disproportionate burden to a natural person, a reprimand may be issued instead of a fine’ (emphasis added). 70. In my view, one may infer from that statement that the EU legislature was aware that an administrative fine is a particularly severe corrective measure which should not be used in all cases, as that might diminish its effectiveness, but that it should only be applied where the circumstances of a particular case so require. Recital 148 of the GDPR refers to the principle of proportionality to be observed by supervisory authorities when applying that regulation in the specific context of sanctions, including administrative fines. As I have already noted in my analysis, that principle is reflected in recital 129 of that regulation, which concerns the adoption of corrective measures in general. (31) The system of sanctions which the legislature meant to provide for is therefore flexible and differentiated. (32) 71. It follows from the interpretation of Article 83(2) of the GDPR, read in the light of recital 148 thereof, that, even when it has identified an infringement, the assessment of the criteria in that provision may lead the supervisory authority to believe that in the concrete circumstances of the case, the breach does not pose a significant risk to the rights of the data subjects concerned, for example, and does not affect the essence of the obligation in question. In such cases, the fine may in some cases – but not always – be replaced by a reprimand. (33) 72. However, it is important to point out that recital 148 does not contain an obligation for the supervisory authority to replace a fine by a reprimand in the case of a minor infringement in all circumstances, but leaves it free to do so after an assessment of all the specific circumstances of the case. Lastly, it follows from recital 148 that the supervisory authority may refrain from imposing a fine, even if recourse to such a corrective measure would a priori be necessary on the basis of the assessment it has made, if that fine constitutes a disproportionate burden to a natural person. (34) 73. Thus, the circumstances of each individual case, which are referred to in Article 83(2) of the GDPR, ultimately determine whether to impose a fine and, if so, the amount of that fine. All those indications support my view that the decision is ultimately taken at the discretion of the supervisory authority. (35) The supervisory authority is responsible for exercising the discretion conferred on it conscientiously and in accordance with the requirements of the GDPR. The limits on that discretion derive from the general principles of EU law and the law of the Member States, in particular the principle of equal treatment. It follows that there is a need to develop an administrative practice of imposing fines for similar cases in a comparable manner. 74. I would also like to point out that, in the case of the cumulative imposition of financial penalties of a criminal nature, there is even a risk of infringing the principle of ‘ne bis in idem’, as interpreted by the Court of Justice, which is referred to in recital 149 of the GDPR. That principle constitutes a fundamental right, protected by Article 50 of the Charter, and it may only be restricted under strict conditions, referred to in Article 52 of the Charter. In other words, there may also be legal barriers to the imposition of administrative fines. 5. No obligation imposed on the supervisory authority to issue administrative fines where the complainant expressly so requests 75. The final aspect to consider is whether the supervisory authority is obliged to impose administrative fines where the complainant expressly so requests. As I noted when considering the admissibility of the request for a preliminary ruling, it is apparent from the file that TR had asked the HBDI to take action against the savings bank and to impose administrative fines on it. In support of his claim, TR had made calculations to determine the amount of the fines to be imposed. (36) That request is apparently based on the view that a complainant has a subjective right vis-à-vis the supervisory authority to request the adoption of a specific measure. However, as I will explain below, I consider that such a position has no legal foundation. 76. First, my analysis has shown that the supervisory authority has discretion to choose the appropriate measure in each individual case. Unless there are particular circumstances that could lead to a limitation of that discretion, such as the gravity or continuing impact of a personal data breach – which do not seem to me to be present in the case at hand – the supervisory authority retains that discretion. In view of the fact that administrative fines are among the corrective measures that the supervisory authority may adopt under Article 58(2) of the GDPR, it is logical to infer that that discretion also extends to them. It follows that there is no obligation imposed on the supervisory authority to act in the interests of the complainant by adopting a particular corrective measure. 77. Second, even if the circumstances of the case were so different as to justify the adoption of a specific corrective measure, it seems to me that it could not reasonably be argued that the imposition of an administrative fine would be necessary. Like the Austrian Government, I consider that account should be taken of the objectives pursued by the various corrective measures listed in Article 58(2) of the GDPR and, in particular, by the administrative fine. More specifically, it seems to me that its legal nature precludes the recognition of a subjective right on the part of a data subject in the sense referred to above, since one of the measure’s aims is to punish conduct considered to be contrary to EU law. I consider that, by virtue of its punitive purpose, at least in certain situations, (37) and in view of the high degree of severity that it may involve, an administrative fine is likely to be criminal in nature. (38) It should be remembered that the right to punish (ius puniendi) belongs exclusively to the State and its organs. 78. In that context, it should be noted that Article 83(1) of the GDPR requires, inter alia, that fines should, in each individual case, be ‘effective, proportionate and dissuasive’. It is for the supervisory authority to assess whether the proposed fine meets those conditions in a particular case; the authority acts on its own responsibility. It is for the supervisory authority to decide whether recourse to an administrative fine is required in a particular case. To that end, the EU legislature provides it with a detailed legal framework. Thus, Article 83 of the GDPR lays down the general conditions for imposing such fines, which are supplemented by the guidelines on the application and setting of administrative fines for the purposes of the GDPR, drawn up by the EDPB pursuant to Article 70(1)(k) of that regulation. In that regard, it should be noted that none of those rules or guidelines supports the inference that complainants whose rights have been infringed have a particular legal status enabling them to request the supervisory authority to impose an administrative fine on the infringing party. 79. Admittedly, certain criteria referred to in Article 83(2) of the GDPR – such as the level of damage suffered – suggest that the supervisory authority must also take account of the situation of the data subject when taking a decision. However, those criteria do not in themselves constitute sufficient evidence of a subjective right to seek the imposition of a fine. It follows from an interpretation of that provision, read in the light of recital 75 of that regulation, that the purpose of those criteria is to provide the supervisory authority with useful information to enable it to assess the nature, gravity and duration of the infringement and to choose the appropriate corrective measure. (39) Consequently, depending on each individual case, the supervisory authority may consider various corrective measures – not just an administrative fine – without the data subject being able to demand the adoption of a specific measure. It is for the supervisory authority alone to decide whether to adopt a measure with the aim of reestablishing compliance with the rules or punishing unlawful conduct. 80. Third, although the EU legislature was inspired by the powers held by the Commission in the field of competition law when it defined the role of the supervisory authority in the system of fines created by the GDPR, that fact does not support a different conclusion. (40) In that respect, it will be recalled that the Commission’s power to impose fines on undertakings that commit infringements within the meaning of Articles 101 and 102 TFEU is one of the means conferred on the Commission in order to enable it to carry out the task of supervision entrusted to it by EU law. (41) However, it should be noted that the Commission has discretion, and in exercising it the Commission is limited only by the requirement to observe the general principles of EU law, including the principles of proportionality and equal treatment. (42) Furthermore, it should be noted that Regulation (EC) No 1/2003 on the implementation of the competition rules (43)does not provide for any right to apply for the adoption of fines under Article 23 for complainants or third parties whose interests may be affected by a decision in the context of an administrative procedure initiated by the Commission, (44) the latter being, under Article 27 of that regulation, merely obliged to grant any requests for a hearing submitted by such complainants or third parties prior to the adoption of such a sanction. 81. On the basis of the considerations set out above, I consider that it is not possible, in the current state of development of EU law, to conclude that a complainant whose rights have been infringed has a subjective right to seek the imposition of an administrative fine. That conclusion is without prejudice to the possibility for complainants to propose recourse to such a corrective measure, providing arguments and evidence to support their point of view. However, the final decision is at the discretion of the supervisory authority. D. Summary of analysis of the question referred for a preliminary ruling 82. It follows from the above analysis that the supervisory authority has an obligation to act when it finds a personal data breach in the course of investigating a complaint. In particular, it is required to define the most appropriate corrective measure(s) to remedy the infringement and ensure that the data subject’s rights are respected. In that regard, while leaving some discretion to the supervisory authority, the GDPR requires that such measures be appropriate, necessary and proportionate. Under certain conditions, the supervisory authority may dispense with the measures referred to in Article 58(2) of that regulation in favour of ‘autonomous’ measures taken by the controller itself. In any event, the data subject does not have the right to require the adoption of a particular measure. Those principles also apply to the system of administrative fines. VI. Conclusion 83. In the light of the above considerations, I propose that the Court of Justice answer the question referred for a preliminary ruling by the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden, Germany) as follows: The combined provisions of Article 57(1)(a) and (f), Article 58(2)(a) to (j) and Article 77(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that where the supervisory authority finds that data processing has infringed the data subject’s rights, the supervisory authority must take action under Article 58(2) of Regulation 2016/679 to the extent necessary to ensure full compliance with that regulation. In that respect, it is required to select, taking into account the specific circumstances of each individual case, the appropriate, necessary and proportionate action to remedy the infringement and ensure that the data subject’s rights are respected. 1 Original language: French. i The title of this case has been amended since it was first put online. 2 OJ 2016 L 119, p. 1. 3 Opinion in Joined Cases SCHUFA Holding (Discharge from remaining debts) (C‑26/22 and C‑64/22, EU:C:2023:222). 4 See judgment of 10 December 2020, J & S Service (C‑620/19, EU:C:2020:1011, paragraph 31 and the case-law cited). 5 See judgment of 14 July 2022, Sense Visuele Communicatie en Handel (C‑36/21, EU:C:2022:556, paragraph 22 and the case-law cited). 6 Judgment of 7 December 2023, SCHUFA Holding (Discharge from remaining debts) (C‑26/22 and C‑64/22, EU:C:2023:958; ‘the judgment in SCHUFA’). 7 See points 35 to 39 of the present Opinion. 8 See point 40 et seq. of the present Opinion. 9 Judgment in SCHUFA (paragraph 55). 10 Judgment in SCHUFA (paragraph 56). 11 Judgment in SCHUFA (paragraphs 56 and 57). 12 Judgment in SCHUFA (paragraph 58). 13 Judgment in SCHUFA (paragraph 70). 14 See ‘Guidelines on the application and setting of administrative fines for the purposes of the [GDPR]’ of the Article 29 Data Protection Working Party, adopted on 3 October 2017, p. 5 (‘Guidelines on the application and setting of administrative fines for the purposes of the GDPR’). The working group was subsequently replaced by the European Data Protection Board (EDPB). However, its guidelines remain valid. 15 See, in that regard, Chamberlain, J., Reichel, J., ‘The Relationship Between Damages and Administrative Fines in the EU General Data Protection Regulation’, Mississippi Law Journal, 2020, Vol. 89, No 4, p. 686, who rely on the abovementioned guidelines. 16 Hijmans, H., ‘Article 57. Tasks’, in The EU General Data Protection Regulation (GDPR), Kuner, C., Bygrave, L.A., Docksey, C. (eds.), Oxford University Press, 2020, p. 934. 17 See, in that regard, Härting, N., Flisek, C., Thiess, L., ‘DSGVO: Der Verwaltungsakt wird zum Normalfall – Das neue Beschwerderecht des Bürgers’, Computer und Recht, 5/2018, p. 299. 18 See my Opinion in the SCHUFA joined cases, points 41 et seq.. 19 See the versions in Spanish (‘dispondrá de … los … poderes correctivos’), Danish (‘har … korrigerende beføjelser’), German (‘verfügt über … Abhilfebefugnisse, die es ihr gestatten’), Estonian (‘on … parandusvolitused’), French (‘dispose du pouvoir’), Italian (‘ha … i poteri correttivi’), Dutch (‘heeft … bevoegdheden tot het nemen van corrigerende maatregelen’), Polish (‘przysługują … uprawnienia naprawcze’), Portuguese (‘dispõe dos … poderes de correção’) and Swedish (‘ska ha … korrigerande befogenheter’). 20 See, in that regard, Härting, N., Flisek, C., Thiess, L., ‘DSGVO: Der Verwaltungsakt wird zum Normalfall – Das neue Beschwerderecht des Bürgers’, Computer und Recht, 5/2018, p. 299. 21 See judgment of 16 July 2020, Facebook Ireland and Schrems (C‑311/18, EU:C:2020:559, paragraph 111), and judgment in SCHUFA (paragraph 57). Emphasis added. 22 Judgment of 16 July 2020, Facebook Ireland and Schrems (C‑311/18, EU:C:2020:559, paragraph 112). Emphasis added. 23 See point 42 of that opinion. 24 Judgment of 16 July 2020, Facebook Ireland and Schrems (C‑311/18, EU:C:2020:559, paragraph 113). The Court of Justice held that the supervisory authority is required, under Article 58(2)(f) and (j) of the GDPR, to suspend or prohibit a transfer of personal data to a third country if, in its view, in the light of all the circumstances of that transfer, the standard data protection clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law cannot be ensured by other means, unless the controller or a processor established in the European Union has not itself suspended or put an end to the transfer. 25 See, in that regard, Georgieva, L., Schmidl, M., ‘Article 58. Powers’, in The EU General Data Protection Regulation (GDPR), Kuner, C., Bygrave, L.A., Docksey, C., (eds.), Oxford University Press, 2020, p. 945. 26 See judgment of 5 December 2023, Nacionalinis visuomenės sveikatos centras (C‑683/21, EU:C:2023:949, paragraph 78). 27 See ‘Guidelines on the application and setting of administrative fines for the purposes of the GDPR’, p. 9. 28 See versions in Spanish (‘Al decidir la imposición’), Danish (‘Når der træffes afgørelse om, hvorvidt der skal pålægges’), German (‘Bei der Entscheidung über die Verhängung’), Estonian (‘Otsustades igal konkreetsel juhul’), French (‘Pour décider s’il y a lieu d’imposer’), Italian (‘Al momento di decidere se infliggere’), Dutch (‘Bij het besluit over de vraag of … wordt opgelegd’), Polish (‘Decydując, czy nałożyć’), Portuguese (‘Ao decidir sobre a aplicação’) and Swedish (‘Vid beslut om huruvida … ska påföras’). 29 See, in that regard, judgment of 5 December 2023, Deutsche Wohnen (C‑807/21, EU:C:2023:950, paragraphs 61 et seq.). 30 Judgment of 5 December 2023, Nacionalinis visuomenės sveikatos centras (C‑683/21, EU:C:2023:949, paragraph 76). 31 See point 45 of the present Opinion. 32 See the Opinion of Advocate General Emiliou in Nacionalinis visuomenės sveikatos centras (C‑683/21, EU:C:2023:376, paragraph 78), in which he explains that, when adopting the GDPR, the EU legislature did not intend for every breach of the data protection rules to be punishable by an administrative fine. 33 See ‘Guidelines on the application and setting of administrative fines for the purposes of the GDPR’, p. 9. 34 See ‘Guidelines on the application and setting of administrative fines for the purposes of the GDPR’, p. 9. 35 Holländer, C., Beck’scher Online-Kommentar Datenschutzrecht (Wolff/Brink/Ungern-Sternberg), 46th edition, Munich 2017, Article 83 GDPR, point 22; Frenzel, E., Datenschutz-Grundverordnung Kommentar (Paal/Pauly/Frenzel), 3rd edition, Munich, 2021, Article 83 GDPR, points 8 to 12, explaining that the supervisory authority has discretion and is therefore not obliged to impose an administrative fine in all cases. 36 See point 30 of the present Opinion. 37 The ‘Guidelines on the application and setting of administrative fines for the purposes of the GDPR’ state on p. 6 that administrative fines are ‘corrective measures’ whose purpose may be ‘to reestablish compliance with the rules, or to punish unlawful behaviour (or both)’. Emphasis added. 38 I would recall that three criteria are relevant in assessing whether penalties are criminal in nature: the first criterion is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty that the person concerned is liable to incur (see judgments of 5 June 2012, Bonda, (C‑489/10, EU:C:2012:319, paragraph 37), and of 2 February 2021, Consob, (C‑481/19, EU:C:2021:84, paragraph 42); and of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 42); see also ECtHR, 8 June 1976, Engel and Others v. The Netherlands, CE:ECHR:1976:0608JUD000510071, § 82). Not all criteria must be fulfilled in order for a fine to be considered as criminal (see, in that regard, Opinion of Advocate General Bot in ThyssenKrupp Nirosta v Commission (C‑352/09 P, EU:C:2010:635, point 50 and the case-law cited). 39 See ‘Guidelines on the application and setting of administrative fines for the purposes of the GDPR’, p. 11, which explains that the level of damage must be taken into account ‘in [the supervisory authority’s] choice of corrective measure’, but that this does not rule out the adoption of corrective measures other than an administrative fine. On the other hand, the Guidelines state that ‘the imposition of a fine is not dependent on the ability of the supervisory authority to establish a causal link between the breach and the material loss’. It follows that the decision to impose an administrative fine depends on each individual case and not merely on the existence of damage. 40 See, in that regard, the Opinion of Advocate General Emiliou in Nacionalinis visuomenės sveikatos centras (C‑683/21, EU:C:2023:376, point 84), in which he draws attention to the similarities between the two systems. See also judgment of 5 December 2023, Deutsche Wohnen (C‑807/21, EU:C:2023:950, paragraphs 55 et seq.). 41 See, to that effect, judgment of 11 June 2009, X BV (C‑429/07, EU:C:2009:359, paragraph 35 and the case-law cited). 42 Opinion of Advocate General Kokott in Joined Cases Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:11, point 48 and the case-law cited). 43 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 44 See, to that effect, Wils, W., ‘Procedural rights and obligations of third parties in antitrust investigation and proceedings by the European Commission’, Concurrence, No 2-2022, p. 50.