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No materiality threshold for damages under the GDPR?

Mar 31, 21 • Privacy LawNo Comments

Damages as a sanction under the GDPR

The General Data Protection Regulation (GDPR) empowers supervisory authorities to impose heavy fines. These fines can be much higher than before. This has been a concern for companies since the GDPR came into force. On the other hand, they paid less attention to another possible sanction stipulated in the GDPR for infringements: damages. Claims for damages citing GDPR violations can also be expensive for companies.

Conditions and scope of damages unclear

The GDPR stipulates that any person who has suffered material or non-material damage as a result of a breach of this Regulation is entitled to compensation. In this context, the assertion of non-material damages due to infringements of personal rights is particularly relevant. At present, however, neither the conditions nor the scope of such damages have been unequivocally clarified.

Materiality threshold of the courts

The majority of courts have moved towards requiring a serious violation of personal rights for the compensability of non-material damages. If the materiality threshold is not met, no damages will be awarded. However, this limitation is contrary to the considerations of the GDPR, according to which the affected individual should receive full and effective compensation for the damage suffered.

Materiality threshold could be removed

Whether the materiality threshold applied by the German courts is in line with European law is now for the European Court of Justice to decide. Against the background that the GDPR does not recognize such a limitation and advocates a broad concept of damage, the materiality threshold threatens to disappear in the future and thus to expand the liability for GDPR violations.

WINHELLER advises on GDPR violations in Germany

For a lawful handling of the GDPR and the avoidance of claims for damages, our experienced attorneys for data protection law are happy to assist you.

Continue Reading:
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Companies May Issue Warnings of GDPR Violations in Germany

Stefan Winheller

Attorney Stefan Winheller has specialized in tax law for about 20 years, especially in the areas of cryptocurrencies, foundations/nonprofits and international tax law.

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