EU Advocate General : Member States may allow consumer protection associations to bring representative actions against infringements of the protection of personal data

On December 2nd, EU Advocate General Richard de la Tour published an opinion in which he stated that EU member states may allow consumer protection associations to bring representative actions against infringements of rights that data subjects derive directly from the General Data Protection Regulation (“GDPR”). In doing so, he agrees with the legal opinion of the Federation of the Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (Federation of German Consumer Organisations (“vzbv”)), which has filed an action for an injunction against Facebook in German courts for non-transparent use of data.

The lawsuit of the vzbv is specifically about third-party games that Facebook offers in its “App Center”. In order to play games like Scrabble within Facebook, users must consent to the use of their data. However, Facebook had not provided information about the use of the data in a precise, transparent and comprehensible manner, as required by Article 13 GDPR. The Federal Court of Justice in Germany (“Bundesgerichtshof”) already came to this conclusion in May 2020, but the Bundesgerichtshof considered it unclear whether associations such as the vzbv have the legal authority to bring data protection violations to court. It argues, inter alia, that it can be inferred from the fact that the GDPR grants supervisory authorities extended supervisory and investigatory powers, as well as the power to adopt remedial measures, that it is primarily the task of those authorities to monitor the application of the provisions of the Regulation. The Bundesgerichtshof therefore asked the Court of Justice of the European Union (“CJEU”) to interpret the GDPR. The Advocate General now affirms the admissibility of such an action by an association, at least if the EU member state in question permits it. The action for an injunction brought by the vzbv against Facebook headquarters in Ireland is therefore deemed admissible by the EU Advocate General.

The Advocate General states, that

the defence of the collective interests of consumers by associations is particularly suited to the objective of the General Data Protection Regulation of establishing a high level of personal data protection.  

The Advocate General’s Opinion is not legally binding on the CJEU. The role of the Advocate General is to propose a legal solution for the cases to the CJEUin complete independence. The judges of the Court will now begin their consultations in this case.