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North Rhine-Westphalia: Hagen District Court submits preliminary ruling to CJEU on non-material damages under the GDPR

A request for a preliminary ruling of the Court of Justice of the European Union ('CJEU'), as submitted by the Hagen District Court on 16 November 2021, was published, on 7 February 2022, in the Official Journal of the European Union ('OJ'). In particular, the OJ  outlines that the request for a preliminary ruling arose from the case BL v. Saturn Electro-Handelsgesellschaft mbH Hagen and details that the Hagen District Court referred the following questions:

  • As no automatic legal effects are specified, is the compensation rule enacted in Article 82 of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') invalid in the case of non-material damage?
  • Is it necessary, for the purposes of the right to compensation, to establish the occurrence of non-material damage, to be demonstrated by the claimant, in addition to the unauthorised disclosure of the protected data to an unauthorised third party?
  • Does the accidental disclosure of the personal data of the data subject (including name, address, occupation, income, and employer) to a third party in a paper document, as the result of a mistake by employees of the processing undertaking, suffice in order to establish an infringement of the GDPR?
  • Where the undertaking accidentally discloses, through its employees, data entered in an automated data processing system to an unauthorised third party in the form of a printout, does that accidental disclosure to a third party qualify as unlawful further processing, in accordance with Articles 2(1), 5(1)(f), 6(1), and 24 of the GDPR?
  • Is non-material damage within the meaning of Article 82 of the GDPR incurred, even where the third party who received the document containing the personal data did not read the data before returning the document containing the information, or does the discomfort of the person whose personal data was unlawfully disclosed suffice for the purpose of establishing non-material damage within the meaning of Article 82 of the GDPR, given that every unauthorised disclosure of personal data entails the risk, which cannot be eliminated, that the data might nevertheless have been passed on to any number of people or even misused?
  • Where accidental disclosure to third parties is preventable through better supervision of the undertaking's helpers and/or better data security arrangements, for example, by handling collections separately from contract documentation (especially financing documentation) under separate collection notes or by sending the documentation internally to the collection counter without giving the customer the printed documents and collection note, how serious should the infringement be considered pursuant to Articles 32(1)(b), 32(2), and 4(7) of the GDPR?
  • Is compensation for non-material damage to be regarded as the award of a penalty similar to a contract penalty?

You can read the OJ here.