Federal Constitutional Court rules on the referral of questions relating to the GDPR

Johannes Zwerschke

The Federal Constitutional Court recently issued a notable ruling with regard to the referral of questions to the ECJ in connection with the GDPR.

The ruling (only in German) was issued in a case involving an attorney who received an advertising e-mail from a company at his work e-mail address. Believing that the company lacked an adequate legal basis for sending the e-mail (in accordance with Article 6(1) of the GDPR), the attorney sued the company before the competent Local Court in accordance with Article 82(1) of the GDPR, seeking e.g. damages of no less than EUR 500. The court dismissed the complaint as far as the damage claim was concerned, pointing out that, after all, the case involved "only" a single advertising e-mail and that this e-mail did not in any way cause significant harm to the attorney. Essentially, the court dismissed the claim for lack of significance. While the Local Court acknowledged that the damage claim in accordance with the GDPR is generally interpreted and applied broadly pursuant to Recital 146 Sentence 3 to the GDPR, it nevertheless found that a single advertising e-mail is insignificant and does not cause sufficient harm to justify a damage claim in accordance with Article 82(1) of the GDPR. It must be kept in mind that Article 82 of the GDPR does not distinguish between significant and insignificant damages. The attorney therefore filed a constitutional complaint, alleging that the Local Court's judgment violated his constitutional right to trial before a lawful court (Article 101(1) Sentence 2 of the Basic Law). The attorney protested that the Local Court's judgment prevented him from clarifying a question which has yet to be decided by the higher courts: the question as to whether insignificant damages (in this case, the sending of a single advertising e-mail) could justify a damage claim in accordance with Article 82(1) of the GDPR.

The Federal Constitutional Court agreed with the argument made by the plaintiff, the attorney, noting that the Local Court did not even consider a referral to the ECJ even though the question as to the requirements for a damage claim had yet to be conclusively clarified by the higher courts. Reasonable doubts as to how Article 82(1) of the GDPR should be understood in the present case are entirely appropriate, in the court's view. After all, the question as to whether damages exist was also the principal basis for the Local Court's decision as to whether or not to award the attorney a damage claim in accordance with Article 82(1) of the GDPR. Moreover, the Federal Constitutional Court found that the legal situation was not clear enough from the start that a referral could be dispensed with. The Federal Constitutional Court therefore ruled that Article 101(1) Sentence 2 had been violated and that the Local Court should have considered a referral to the ECJ.

Accordingly, the Federal Constitutional Court overturned the Local Court's judgment and the Local Court is now required to issue a new judgment in light of the present ruling.

Whether the Local Court will now refer the matter to the ECJ is an open question, but it is overwhelmingly likely. In any case, the Federal Constitutional Court's ruling strengthens the hand of those who argue that questions involving European legislation must be clarified by the ECJ. However, it should be kept in mind in future litigation involving interpretation of the GDPR that the national court's decision must be based mainly on the facts of the case in question. Moreover, the possibilities for appeal to courts in the member state have to be fully exhausted. In this case, the requirements for an appeal to the next-highest court, the District Court, were not satisfied, raising the question of referral to the ECJ directly, but that will not necessary be true in other cases. Still, the decision by the Federal Constitutional Court can be understood as an effort to encourage all German courts to clarify the many outstanding questions relating to the GDPR.

[April 2021]