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5419/16

AV/NT/sr

DGD 2

Where a complaint has been rejected or dismissed by a supervisory authority, the

complainant may bring proceedings before the courts in the same Member State. In the

context of judicial remedies relating to the application of this Regulation, national courts

which consider a decision on the question necessary to enable them to give judgment, may,

or in the case provided for in Article 267 TFEU, must, request the Court of Justice to give

a preliminary ruling on the interpretation of Union law, including this Regulation.

Furthermore, where a decision of a supervisory authority implementing a decision of the

Board is challenged before a national court and the validity of the decision of the Board is

at issue, that national court does not have the power to declare the Board's decision invalid

but must refer the question of validity to the Court of Justice in accordance with

Article 267 TFEU as interpreted by the Court of Justice, where it considers the decision

invalid. However, a national court may not refer a question on the validity of the decision

of the Board at the request of a natural or legal person which had the opportunity to bring

an action for annulment of that decision, in particular if it was directly and individually

concerned by that decision, but had not done so within the period laid down by

Article 263 TFEU.

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AV/NT/sr

DGD 2

(144)

Where a court seized of proceedings against a decision by a supervisory authority has

reason to believe that proceedings concerning the same processing, such as the same

subject matter as regards processing by the same controller or processor, or the same cause

of action, are brought before a competent court in another Member State, it should contact

that court in order to confirm the existence of such related proceedings. If related

proceedings are pending before a court in another Member State, any court other than the

court first seized may stay its proceedings or may, on request of one of the parties, decline

jurisdiction in favour of the court first seized if that court has jurisdiction over the

proceedings in question and its law permits the consolidation of such related proceedings.

Proceedings are deemed to be related where they are so closely connected that it is

expedient to hear and determine them together in order to avoid the risk of irreconcilable

judgments resulting from separate proceedings.

(145) For proceedings against a controller or processor, the plaintiff should have the choice to

bring the action before the courts of the Member States where the controller or processor

has an establishment or where the data subject resides, unless the controller is a public

authority of a Member State acting in the exercise of its public powers.

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5419/16

AV/NT/sr

DGD 2

(146) The controller or processor should compensate any damage which a person may suffer as a

result of processing that infringes this Regulation. The controller or processor should be

exempt from liability if it proves that it is not in any way responsible for the damage. The

concept of damage should be broadly interpreted in the light of the case-law of the Court of

Justice in a manner which fully reflects the objectives of this Regulation. This is without

prejudice to any claims for damage deriving from the violation of other rules in Union or

Member State law. Processing that infringes this Regulation also includes processing that

infringes delegated and implementing acts adopted in accordance with this Regulation and

Member State law specifying rules of this Regulation. Data subjects should receive full and

effective compensation for the damage they have suffered. Where controllers or processors

are involved in the same processing, each controller or processor should be held liable for

the entire damage. However, where they are joined to the same judicial proceedings, in

accordance with Member State law, compensation may be apportioned according to the

responsibility of each controller or processor for the damage caused by the processing,

provided that full and effective compensation of the data subject who suffered the damage

is ensured. Any controller or processor which has paid full compensation may

subsequently institute recourse proceedings against other controllers or processors

involved in the same processing.

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5419/16

AV/NT/sr

DGD 2

(147)

Where specific rules on jurisdiction are contained in this Regulation, in particular as

regards proceedings seeking a judicial remedy including compensation, against a controller

or processor, general jurisdiction rules such as those of Regulation (EU) No 1215/2012 of

the European Parliament and of the Council

should not prejudice the application of such

specific rules.

(148)

In order to strengthen the enforcement of the rules of this Regulation, penalties including

administrative fines should be imposed for any infringement of this Regulation, in addition

to, or instead of appropriate measures imposed by the supervisory authority pursuant to this

Regulation. 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. Due regard should however be given to the nature, gravity and duration of the

infringement, the intentional character of the infringement, actions taken to mitigate the

damage suffered, degree of responsibility or any relevant previous infringements, the

manner in which the infringement became known to the supervisory authority, compliance

with measures ordered against the controller or processor, adherence to a code of conduct

and any other aggravating or mitigating factor. The imposition of penalties including

administrative fines should be subject to appropriateprocedural safeguards in accordance

with the general principles of Union law and the Charter, including effective judicial

protection and due process.

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of

12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil

and commercial matters (OJ L 351, 20.12.2012, p. 1).

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5419/16

AV/NT/sr

DGD 2

(149) Member States should be able to lay down the rules on criminal penalties for infringements

of this Regulation, including for infringements of national rules adopted pursuant to and

within the limits of this Regulation. Those criminal penalties may also allow for the

deprivation of the profits obtained through infringements of this Regulation. However, the

imposition of criminal penalties for infringements of such national rules and of

administrative penalties should not lead to a breach of the principle of ne bis in idem, as

interpreted by the Court of Justice.

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AV/NT/sr

DGD 2

(150) In order to strengthen and harmonise administrative penalties for infringements of this

Regulation, each supervisory authority should have the power to impose administrative

fines. This Regulation should indicate infringements and the upper limit and criteria for

fixing the related administrative fines, which should be determined by the competent

supervisory authority in each individual case, taking into account all relevant

circumstances of the specific situation, with due regard in particular to the nature, gravity

and duration of the infringement and of its consequences and the measures taken to ensure

compliance with the obligations under this Regulation and to prevent or mitigate the

consequences of the infringement. Where administrative fines are imposed on an

undertaking, an undertaking should be understood to be an undertaking in accordance with

Articles 101 and 102 TFEU for those purposes. Where administrative fines are imposed on

persons that are not an undertaking, the supervisory authority should take account of the

general level of income in the Member State as well as the economic situation of the

person in considering the appropriate amount of the fine. The consistency mechanism may

also be used to promote a consistent application of administrative fines. It should be for the

Member States to determine whether and to which extent public authorities should be

subject to administrative fines. Imposing an administrative fine or giving a warning does

not affect the application of other powers of the supervisory authorities or of other

penalties under this Regulation.

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(151) The legal systems of Denmark and Estonia do not allow for administrative fines as set out

in this Regulation. The rules on administrative fines may be applied in such a manner that

in Denmark the fine is imposed by competent national courts as a criminal penalty and in

Estonia the fine is imposed by the supervisory authority in the framework of a

misdemeanor procedure, provided that such an application of the rules in those

Member States has an equivalent effect to administrative fines imposed by supervisory

authorities. Therefore the competent national courts should take into account the

recommendation by the supervisory authority initiating the fine. In any event, the fines

imposed should be effective, proportionate and dissuasive.

(152)

Where this Regulation does not harmonise administrative penalties or where necessary in

other cases, for example in cases of serious infringements of this Regulation,

Member States should implement a system which provides for effective, proportionate and

dissuasive penalties. The nature of such penalties, criminal or administrative, should be

determined by Member State law.

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DGD 2

(153) Member States law should reconcile the rules governing freedom of expression and

information, including journalistic, academic, artistic and or literary expression with the

right to the protection of personal data pursuant to this Regulation. The processing of

personal data solely for journalistic purposes, or for the purposes of academic, artistic or

literary expression should be subject to derogations or exemptions from certain provisions

of this Regulation if necessary to reconcile the right to the protection of personal data with

the right to freedom of expression and information, as enshrined in Article 11 of the

Charter. This should apply in particular to the processing of personal data in the

audiovisual field and in news archives and press libraries. Therefore, Member States

should adopt legislative measures which lay down the exemptions and derogations

necessary for the purpose of balancing those fundamental rights. Member States should

adopt such exemptions and derogations on general principles, the rights of the data subject,

the controller and the processor, the transfer of personal data to third countries or

international organisations, the independent supervisory authorities, cooperation and

consistency, and specific data-processing situations. Where such exemptions or

derogations differ from one Member State to another, the law of the Member State to

which the controller is subject should apply. In order to take account of the importance of

the right to freedom of expression in every democratic society, it is necessary to interpret

notions relating to that freedom, such as journalism, broadly.

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DGD 2

(154)

This Regulation allows the principle of public access to official documents to be taken into

account when applying this Regulation. Public access to official documents may be

considered to be in the public interest. Personal data in documents held by a public

authority or a public body should be able to be publicly disclosed by that authority or body

if the disclosure is provided for by Union or Member State law to which the public

authority or public body is subject. Such laws should reconcile public access to official

documents and the reuse of public sector information with the right to the protection of

personal data and may therefore provide for the necessary reconciliation with the right to

the protection of personal data pursuant to this Regulation. The reference to public

authorities and bodies should in that context include all authorities or other bodies covered

by Member State law on public access to documents. Directive 2003/98/EC of the

European Parliament and of the Council

leaves intact and in no way affects the level of

protection of natural persons with regard to the processing of personal data under the

provisions of Union and Member State law, and in particular does not alter the obligations

and rights set out in this Regulation. In particular, that Directive should not apply to

documents to which access is excluded or restricted by virtue of the access regimes on the

grounds of protection of personal data, and parts of documents accessible by virtue of

those regimes which contain personal data the re-use of which has been provided for by

law as being incompatible with the law concerning the protection of natural persons with

regard to the processing of personal data.

Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003

on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).

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DGD 2

(155) Member State law or collective agreements, including 'works agreements', may provide for

specific rules on the processing of employees' personal data in the employment context, in

particular for the conditions under which personal data in the employment context may be

processed on the basis of the consent of the employee, the purposes of the recruitment, the

performance of the contract of employment, including discharge of obligations laid down

by law or by collective agreements, management, planning and organisation of work,

equality and diversity in the workplace, health and safety at work, and for the purposes of

the exercise and enjoyment, on an individual or collective basis, of rights and benefits

related to employment, and for the purpose of the termination of the employment

relationship.

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