Madrileña Red De Gas, S.A.U. – Court Ruling (Spain, 2021)

A gas distribution company appealed the decision PS/00188/2019 of the Spanish DPA (AEPD) for considering that it was against the constitutional principle of non-retroactivity of the law, enshrined in Article 9(3) of the [https://www.boe.es/buscar/act.php?id=BOE-A-1978-31229 Spanish Constitution], as the the Spanish DPA fined the controller in accordance with the GDPR, and the alleged infringement had occurred in April 2018, before the GDPR came into effect. Therefore, GDPR should not had applied. The Spanish National High Court (AN) analysed Recital 171 GDPR and noted that the Regulation had entered into force 20 days after its publication in the Official Journal of the European Union, that is, on May 24, 2016, However, the Regulation only became directly applicable and mandatory in all its elements in each Member State as of May 25, 2018, therefore providing, the Member States and their respective Supervisory Authorities, of a period of 2 years for their preparation, application and interpretation of the different rights and obligations that it establishes. Therefore, both Directive 95/46 and the [https://www.boe.es/buscar/act.php?id=BOE-A-1999-23750 former Spanish Data Protection Act] were fully valid and applicable to the case at hand at the time of the infringement, while the AEPD applied the GDPR to the case. The AN held that the GDPR was not applicable when the alleged infringement happened, in April 2018, and that it had been retroactively applied by the AEPD, what goes against the constitutional principle of non-retroactivity of the law, enshrined in Article 9(3) of the [https://www.boe.es/buscar/act.php?id=BOE-A-1978-31229 Spanish Constitution]. The Court further clarified that the GDPR only could have been applicable if it had been more favourable to the infringer than the law that was in effect at the moment. Consequently, the AN upheld the appeal and annulled the sanction imposed by the AEPD on the controller, ordering the refund of the amount of the fine.