Author:Olivia Tambou
1. Without prejudice to any other administrative or non-judicial remedy, each natural or legal person shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them.
2. Without prejudice to any other administrative or non-judicial remedy, each data subject shall have the right to an effective judicial remedy where the supervisory authority which is competent pursuant to Articles 55 and 56 does not handle a complaint or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77.
3. Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.
4. Where proceedings are brought against a decision of a supervisory authority which was preceded by an opinion or a decision of the Board in the consistency mechanism, the supervisory authority shall forward that opinion or decision to the court.
A. General overview
Art. 78 provides for the right to an effective judicial remedy against activities of a SA. This right is the counterpart of the harmonisation and the strengthening of the powers of SAs. It illustrates that SAs are accountable for their actions before courts. The purpose of Art. 78 is also to reinforce effectiveness of the rights of, among others, the data subject and the data controller and/or processor by offering them a legal avenue in case of conflict with a SA.
Art. 78 has been designed as a sectorial expression of the right to an effective remedy before a tribunal under Art. 47 of the CFR in the context of the right to the protection of personal data established by Art. 8 of the CFR respectively. The right to an effective remedy is inspired by Art. 6 and 13 ECHR.[1] It is a core element of the EU legal order based on the rule of law.[2]
However, in light of the principle of national procedural autonomy, it is the competence of each Member State to establish the right to an effective remedy. According to settled case law, Member States must comply with the principle of effectiveness and the principle of equivalence. This means that domestic law cannot be “less favourable than those governing similar situation (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law” (principle of effectiveness).[3]
The final version of Art. 78 para. 1 enshrines a general right to an effective judicial remedy against the binding decision of an SA; Art. 78 para. 2 lays down a specific judicial remedy in case of failure by the SA to handle a complaint or inform the data subject; Art. 78 para. 3 clarifies the competent court; and Art. 78 para. 4 provides for the obligation of the SA to inform national courts about any preceding EDPB opinions or decisions.
B. Legislative history
Art. 28 para. 3 (last sentence) of the DPD read ‘decisions by the supervisory authority which give rise to complaints may be appealed against through the courts; Art. 78 provides for two detailed rights and further specifies procedure and jurisdiction.
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[1]See CJEU Case C-279/09, 22 December 2010, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH, ECLI:EU:C:2010:811 para. 29–32.
[2]CJEU Case C-294/83, 23 April 1986, Parti écologiste “Les Verts” v. EP, ECLI:EU:C:1986:166; CJEU Case C-50/00 P., 25 July 2002, Unión de Pequeños Agricultores v. Council, ECLI:EU:C:2002:462; CJEU Case C-222/84, 15 May 1986, Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, ECLI:EU:C:1986:206.
[3]CJEU Case C-310/14, 5 October 2015, Nike European Operations Netherlands, EU:C:2015:690, para. 28.