Author: Olivia Tambou
1. Where a competent court of a Member State has information on proceedings, concerning the same subject matter as regards processing by the same controller or processor, that are pending in a court in another Member State, it shall contact that court in the other Member State to confirm the existence of such proceedings.
2. Where proceedings concerning the same subject matter as regards processing of the same controller or processor are pending in a court in another Member State, any competent court other than the court first seized may suspend its proceedings.
3. Where those proceedings are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.
A. Preliminary remarks
Art. 81 aims at avoiding conflicting judgements of courts in different Member States, which are concerned with the same data protection legal issues. The same subject matter could be brought before multiple jurisdictions in the EU. Different data subjects, who have suffered from a data breach by the same controller or processor, could use their right to refer to the judge of their habitual residence, for instance.
Αrt. 81 addresses three stages of court cooperation about the same subject matter: (a) The contact between courts in case of parallel judicial proceedings; (b) The suspension of the proceedings to the benefit of the jurisdiction first seized; and (c) The decline of the jurisdiction to the benefit of the first jurisdiction seized.
Art. 81 does not address the situation of the suspension of the proceedings in a situation where the consistency mechanism has been triggered. In such a case, one of the SAs involved in the consistency mechanism or the data controller concerned should inform the court. Art. 78 para. 4 of the GDPR only provides for an obligation of information, where the proceedings are brought against a decision of a SA, which was preceded by an opinion or a decision of the EDPB (→ mn. 20–22).
The interplay between Art. 81 and the Regulation (EU) No 1215/2012 needs to be clarified. First, the ratione materiae scope of Regulation (EU) No 1215/2012 is limited to civil and commercial matters. This implies that Regulation (EU) No 1215/2012 cannot apply when a public authority is involved in the dispute. Second, recital 147 states that “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”. Thus, lex specialis seems to prevail over the general provisions of the Regulation (EU) No 1215/2012.
Moreover, there might be an interplay (via Art. 60 GDPR) with the One-Stop-Shop mechanism, especially where a complaint is partially dismissed and thus the party needs to contest this in separate courts. More concretely, under Art. 60 para. 8 and para. 9, in case of such a rejection, “the supervisory authority with which the complaint was lodged shall adopt the decision”; the part of the complaint upheld will be made by the lead SA (→ mn. 44 and mn. 45 respectively). In case of an appeal against partial rejection, difficulties could arise under Art. 78 GDPR, any appeal against a SA decision is brought in the Member State of the SA (→ mn. 19). Yet, things are unclear where there is an appeal in one Member State regarding the part of the complaint that has been rejected, and an appeal is initiated in another Member State concerning the part upheld. Here, the one process-one outcome-one interpretation of EU law (key goals of the One-Stop-Shop mechanism) could be prejudiced. Although Art. 81 offers courts the discretion to suspend proceedings or decline jurisdiction, this is mere discretion and they might consider that the matters at hand are separate. In such a scenario, there could be different court decisions regarding the same complaint, potentially covering a number of differing points of law.
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