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CHAPTER V

REMEDIES, LIABILITY AND PENALTIES

Article 21 – Remedies

EU-Commision

EU-Parliament

Council

Directive 2002/58/EC4

1. Without prejudice to any other administrative or judicial remedy, every end-user of electronic communications services shall have the same remedies provided for in Articles 77, 78, and 79 of Regulation (EU) 2016/679.

1. Without prejudice to any other administrative or judicial remedy, every end-user of electronic communications services and, where applicable, every body, organisation or association, shall have the same remedies provided for in Articles 77, 78, 79 and 80 of Regulation (EU) 2016/679.

1. Without prejudice to any other administrative or judicial remedy, every end-user shall have the right to an effective judicial remedy in relation to any infringement of rights under this Regulation, the right to lodge a complaint with a supervisory authority and the right to an effective judicial remedy against any legally binding decision of a supervisory authority concerning them.

1 a. Without prejudice to any other administrative or non-judicial remedy, every end-user of electronic communications services shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning him or her. End-users shall also have such a right where the supervisory authority does not handle a complaint or does not inform the end- user within three months on the progress or outcome of the complaint lodged. Proceedings against a supervisory authority shall be brought before the court of the Member State where the supervisory authority is established.

1a Articles 77-80 of Regulation (EU) 2016/679 shall apply mutatis mutandis.

1 b. Every end-user of the communications services shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed. Those proceedings against a provider of electronic communication service, the provider of a publicly available directory, software provider enabling electronic communication or persons sending direct marketing commercial communications or collecting information related to or stored in the end-users terminal equipment shall be brought before the courts of the Member State where they have an establishment. Alternatively, such proceedings shall be brought before the court of the Member State of the habitual residence of the end-user.

2.Any natural or legal person other than end-users adversely affected by infringements of this Regulation and having a legitimate interest in the cessation or prohibition of alleged infringements, including a provider of electronic communications services protecting its legitimate business interests, shall have a right to bring legal proceedings in respect of such infringements.

2. Any natural or legal person other than end-users adversely affected by infringements of this Regulation, including a provider of electronic communications services protecting its legitimate business interests, shall have a right to bring legal proceedings in respect of such infringements.

Article 22 – Right to compensation and liability

Any end-user of electronic communications services who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the infringer for the damage suffered, unless the infringer proves that it is not in any way responsible for the event giving rise to the damage in accordance with Article 82 of Regulation (EU) 2016/679.

Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the infringer for the damage suffered in accordance with Article 82 of Regulation (EU) 2016/679.

Article 23 – General conditions for imposing administrative fines

1.For the purpose of this Article, Chapter VII of Regulation (EU) 2016/679 shall apply to infringements of this Regulation.

1. For the purpose of this Article, Chapter VII of Regulation (EU) 2016/679 shall apply to infringements of this Regulation, mutatis mutandis.

1. Article 83 of Regulation (EU) 2016/679 shall apply mutatis mutandis to infringements of this Regulation.

2.Infringements of the following provisions of this Regulation shall, in accordance with paragraph 1, be subject to administrative fines up to EUR 10 000 000, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:

– unverändert / unchanged –

2. Infringements of the following provisions of this Regulation shall, in accordance with paragraph 1, be subject to administrative fines up to EUR 10 000 000, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:

(a) the obligations of any legal or natural person who process electronic communications data pursuant to Article 8;

– gelöscht / deleted –

(a) the obligations of any legal or natural person who process electronic communications data pursuant to Article 8;

(a a) the obligations of the providers of electronic communications services pursuant to Article 11c;

(b) the obligations of the provider of software enabling electronic communications, pursuant to Article 10;

– gelöscht / deleted –

(b a) the obligations of the providers of publicly available number-based interpersonal communication services pursuant to Articles 12, 13 and 14.

(c)the obligations of the providers of publicly available directories pursuant to Article 15;

(d)the obligations of any legal or natural person who uses electronic communications services pursuant to Article 16.

(e) the obligation to designate a representative pursuant to Article 3 number 2.

3. Infringements of the principle of confidentiality of communications, permitted processing of electronic communications data, time limits for erasure pursuant to Articles 5, 6, and 7 shall, in accordance with paragraph 1 of this Article, be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.

3. Infringements of the following provisions of this Regulation shall, in accordance with paragraph 1, be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:

– unverändert / unchanged –

(a) the principle of confidentiality of communications pursuant to Article 5;

b) the permitted processing of electronic communications data, pursuant to Article 6;

(c) the time limits for erasure and the confidentiality obligations pursuant to Article 7;

(d) the obligations of any legal or natural person who process electronic communications data pursuant to Article 8;

(e) the requirements for consent pursuant to Article 9;

(f) the obligations of the provider of software enabling electronic communications, pursuant to Article 10;

(g) the obligations of the providers of electronic communications services, of the providers of information society services, or of the manufacturers of software permitting the retrieval and presentation of information on the internet pursuant to Article 17.

4. Member States shall lay down the rules on penalties for infringements of Articles 12, 13, 14, and 17.

4. In the event that the same act or omission by the same person results in non-compliance with both Regulation (EU) 2016/679 and this Regulation, then the maximum administrative fine shall be no more than the maximum administrative fine applicable under this Regulation for that type of infringement.

4. Member States shall lay down the rules on penalties for infringements of Articles 12, 13 and 14.

5. Non-compliance with an order by a supervisory authority as referred to in Article 18, shall be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.

6. Without prejudice to the corrective powers of supervisory authorities pursuant to Article 18, each Member State may lay down rules on whether and to what extent administrative fines may be imposed on public authorities and bodies established in that Member State.

7. The exercise by the supervisory authority of its powers under this Article shall be subject to appropriate procedural safeguards in accordance with Union and Member State law, including effective judicial remedy and due process.

8. Where the legal system of the Member State does not provide for administrative fines, this Article may be applied in such a manner that the fine is initiated by the competent supervisory authority and imposed by competent national courts, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative fines imposed by supervisory authorities. In any event, the fines imposed shall be effective, proportionate and dissuasive. Those Member States shall notify to the Commission the provisions of their laws which they adopt pursuant to this paragraph by [xxx] and, without delay, any subsequent amendment law or amendment affecting them.

Article 24 – Penalties

1.Member States shall lay down the rules on other penalties applicable to infringements of this Regulation in particular for infringements which are not subject to administrative fines pursuant to Article 23, and shall take all measures necessary to ensure that they are implemented. Such penalties shall be effective, proportionate and dissuasive.

2.Each Member State shall notify to the Commission the provisions of its law which it adopts pursuant to paragraph 1, no later than 18 months after the date set forth under Article 29(2) and, without delay, any subsequent amendment affecting them.