Court case 1 W 18/21 – Court Ruling (Germany, 2021)

The data subject wanted to assert a claim for compensation for immaterial damage against the controller. To this end, the data subject first applied for legal aid. For this purpose, the data subject set out the unlawfulness of a data processing - not described in the decision. Nothing was said about a non-material damage. For this reason, the Regional Court of Bremen dismissed the application. The data subject filed an immediate appeal against this decision. The Bremen Higher Regional Court (OLG Bremen) rejected the application. The requirements for a claim for damages were not fully presented. Article 82 GDPR presupposes damage. The asserted mere breach of the provisions of the GDPR is not sufficient for a claim. Furthermore, the court found that there was no need to refer the case to the ECJ. First, the wording of Article 82 GDPR clearly presupposes a damage. In this respect, the decision differed from the decision of the Federal Constitutional Court of 14 January 2021 (BVerfG - 1 BvR 2853/19). In that decision, the issue was not whether any damage had occurred at all, but whether there was a materiality threshold for this claim. Second, there is no obligation to make a reference under Article 267(3) TFEU for the proceedings here, since a decision on a legal aid application does not bind the court in the subsequent main action. In this respect, the parties are free to have the issue, which was originally decided only provisionally, re-examined by the courts.