Opinion of the Advocate General — ECLI:EU:C:2022:756
Date: 2022-10-06
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Data protection
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the discussions on their usefulness in that country, see Grealish, M.‑B., ‘A Dollar for Your Thoughts: Determining Whether Nominal Damages Prevent an Otherwise Moot Case from Being an Advisory Opinion’, Fordham L. Rev., vol. 87, p. 733; and, recently, the decision of the United States Supreme Court of 8 March 2021 in Uzuegbunam v Preczewski. Nominal damages are not accepted without debate in the United Kingdom either: it is assumed that, in practice, the importance of an award of nominal damages depends on the recipient being deemed successful for the purpose of the award of legal costs, something which is not automatic following the judgment in Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873. 66 In the context of (the then) Article 215 of the EEC Treaty, the Court required proof of damage, including where, in view of the difficulty of proving damage, the applicant applied for nominal damages; judgment of 21 May 1976, Roquette Frères v Commission (26/74, EU:C:1976:69, paragraphs 23 and 24). 67 In the context of intellectual property, compensation as a response to the breach of a provision serves to achieve the aim itself, which is essential in that area, of protecting the economic integrity of the right. Article 13(1)(a) of Directive 2004/48 refers to the ‘unfair profits made by the infringer’ as one of the factors which judicial authorities are to take into account when setting damages. 68 There is a similar provision in Article 94(2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1): ‘In cases of slight negligence, such claims may be reduced according to the degree of such slight negligence, but not however to the extent that they are less than the advantage derived therefrom by the person who committed the infringement.’ 69 The ineffability of emotions or feelings, particularly if they are related to risks concerning what may happen to data in the future, has resulted in these not being regarded as damage because they lack sufficient clarity or are hypothetical in nature. 70 In other words, the chefs de préjudice or heads of damage. 71 In accordance with that recital, data subjects should receive ‘full and effective compensation’. I do not believe that that wording is relevant for the purposes of the third question because it does not refer to the categories of data for which compensation may be awarded but rather to the calculation of compensation (a step which logically comes later than and cannot be confused with the identification of damage which may be compensated). Taking into account the preparatory documents for the GDPR, the emphasis on ‘full and effective’ compensation ensures that the involvement of more than one controller or processor does not mean that the data subject will receive only partial compensation. Therefore, Article 82(4) of the GDPR states that ‘… each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject’. 72 Article 23 of Directive 95/46 did not specify the damage that was eligible for compensation, which gave rise to discussions about which damage was covered. The negotiations prior to the adoption of the GDPR centred on dispelling the doubts surrounding the inclusion of non-material damage. Recital 118 of the Commission’s proposal, cited in footnote 49, referred to the compensation of any damage. Subsequent stages of the co-legislative procedure referred to ‘any damage, whether pecuniary or not’, which led to the wording ‘non-pecuniary damage’ and resulted finally in the current wording ‘non-material damage’. 73 It had not done so in connection with Article 23 of Directive 95/46 and nor has it done so, to date, in connection with Article 82 of the GDPR. Nor, unless I am mistaken, has the Court given a ruling on Article 56 of Directive (EU) 2016/680 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 by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ 2016 L 119, p. 89), or Article 19 of the repealed framework decision. 74 Nor has it stated a preferred method of interpretation – whether autonomous or by reference to national legal systems: it depends on the matter under examination. Compare the judgments of 10 May 2001, Veedfald (C‑203/99, EU:C:2001:258, paragraph 27), on the subject of defective products; of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 21), on the liability of air carriers; and of 10 June 2021, Van Ameyde España (C‑923/19, EU:C:2021:475, paragraph 37 et seq.), in relation to civil liability applicable to accidents resulting from the use of motor vehicles. Documents relating to the negotiations for the GDPR reflect the uncertainties of Member States as to whether or not the notions of damage and compensation in (the then) Article 77 should be autonomous and show the different positions on the subject. The Commission was in favour of leaving the matter to the Court. See Council of the European Union, Note from the Presidency No 17831/13 of 16 December 2013, footnote 539. 75 For example, consumers of products or victims of traffic accidents. 76 On the subject of package trips, judgment of 12 March 2002, Leitner (C‑168/00, EU:C:2002:163); in connection with civil liability derived from the use of motor vehicles, judgments of 24 October 2013, Haasová (C‑22/12, EU:C:2013:692, paragraphs 47 to 50); of 24 October 2013, Drozdovs (C‑277/12, EU:C:2013:685, paragraph 40); and of 23 January 2014, Petillo (C‑371/12, EU:C:2014:26, paragraph 35). 77 Judgment of 23 January 2014, Petillo (C‑371/12, EU:C:2014:26, operative part): EU law does not preclude ‘national legislation … which lays down a specific compensation scheme for non-material damage resulting from minor physical injuries caused by road traffic accidents, limiting the compensation payable for such damage in comparison with the compensation allowed for identical damage arising from causes other than those accidents’. 78 For example, judgments of 12 March 2002, Leitner (C‑168/00, EU:C:2002:163), on the loss of enjoyment of holidays, and of 6 May 2010, Walz (C‑63/09, EU:C:2010:251), on loss of baggage in the context of package travel. 79 The judgment of 17 March 2016, Liffers (C‑99/15, EU:C:2016:173, paragraph 17), on the interpretation of Directive 2004/48, observed that moral prejudice constitutes a component of the prejudice actually suffered, ‘provided that it is proven’. Logically, proof presupposes the reality of the damage; that, in turn, is close to the notion of seriousness of the damage, although it is not the same. 80 Point 51 above. 81 Point 45 et seq. above. 82 Recently, in relation to data protection in Italy, Tribunale di Palermo, sez. I civile, sentenza 05/10/2017 No 5261, and Cass Civ. Ord. Sez 6, No 17383/2020. In Germany, inter alia, AG Diez, 07.11.2018 – 8 C 130/18; LG Karlsruhe, 02.08.2019 – 8 O 26/19; and AG Frankfurt am Main, 10.07.2020 – 385 C 155/19 (70). In Austria, OGH 6 Ob 56/21k. 83 See judgment of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 51), on the distinction between ‘damage’ within the meaning of Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, and ‘inconveniences’ within the meaning of Regulation No 261/2004, for which compensation is payable under Article 7 thereof, pursuant to the judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716). In that sector, as in the sector for the transport of passengers by sea and inland waterway, to which Regulation No 1177/2010 relates, the legislature was able to recognise an abstract category as a result of the fact that the factor which creates the trouble and the essence of that trouble are identical for all those affected. I do not believe that that inference is possible in relation to data protection. 84 The typical mechanism for exercising the right under Article 82 of the GDPR is proceedings before the ordinary courts. The principle of effectiveness may, naturally, place conditions on the application of national rules on aspects such as procedural costs or evidence. However, the difficulty in accepting that damages may be awarded for mere inconvenience is not only due to the disproportion between its monetary value and the cost of bringing proceedings (apart from the fact that the costs of the administration of justice are not borne only by the parties). I do not believe that it is justified, in view of the silence of the GDPR, to require the Member States to create an ad hoc procedure. 85 It should be recalled that, under Article 82(3) of the GDPR, the controller or processor is exempt from liability only if it proves that it is not in any way responsible for the event giving rise to the damage. 86 By setting out these considerations, I am not prejudging whether, in this case, UI’s situation came under one category or the other, a matter on which the referring court will adjudicate. 87 The same occurs with the amount of compensation.