I’m trying to work out what Article 82(1) of the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) says and means in each of the 24 official languages of the EU institutions, and I’d be very grateful for your help. In English, Article 82(1) GDPR provides
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 controller or processor for the damage suffered.
As I have said before on this blog (here, here, here), I think that this formulation is rather odd. It does not provide, in the present tense, that a person whose rights have been infringed “has” the right to receive compensation. Instead, it provides, in a much more congtingent fashion, that a plaintiff “shall have” such a right, which seems to imply that there is something more to be done in national law before plaintiffs actually have the claim. Although the language seems contingent, it does not replicate any of the usual strictures in a Directive, that Member States shall “provide” or “ensure” or “introduce” or “lay down” measures to achieve an outcome, such as a claim for compensation. Even so, the formulation in Article 82(1) GDPR still seems to envisage some national law mechanism in ensuring that a plaintiff “shall” have a claim to compensation. I’m interested in whether the text of Article 82(1) GDPR in other official languages uses a version of the present tense, or whether the formulation is as contingent as it seems to be in English. I have, therefore, set out below the text of that Article in each of the 24 official languages; I have highlighted the words that seem to me to be most relevant to that question; and I have provided a first attempt at a translation of those words. What I need now is a literal translation of these provisions by a native speakers, irrespective of what the EU Commission’s official translation or Google Translate might say. In particular, I need confirmation whether I have identified the relevant words, and translated them accurately. I’m not particularly interested in the various synonyms for damages (compensation, indemnification, reparation, and so on) so much as in the accompanying verbs, and in particular in whether those verbs are clearly in the present tense or whether they are more contingent. I know what Google Translate’s crowd-sourced machine-translation says, indeed it was one of the sources I used to zero in on what seem to me to be the relevant words in the various languages, but that is as far as I am prepared to go with it, as its translations will be very heavily influenced by the EU’s official translations. Instead, as I say, I am in need of human judgment as to the appropriate literal translations of the various texts of Article 82(1) GDPR.
The literal meaning of the precise wording may very well matter a very great deal in assessing whether Article 82(1) is sufficiently clear, precise and unambiguous to be horizontally directly effective. The contingent nature of the English text may not be, leading to potential problems which I have begun to explore here. Other texts may differ. For example, the French text of Article 82(1) GDPR (a le droit d’obtenir … reparation = has the right to obtain … compensation) is more likely to support a conclusion of horizontal direct effect, and the German text (hat Anspruch auf Schadenersatz =
has a claim for compensation is entitled to compensation) is even more likely to do so, because they are both in the present tense (a, hat) rather than in more contingent terms. Indeed, of the 24 official languages of the EU institutions, if the assessments and translations below are correct, the text of the claim for compensation in Article 82(1) GDPR seems to be in the present tense in 19 of them: 12 are like the French text (the plaintiff “has the right to [receive/obtain] compensation”: Czech, Danish, Dutch, French, Finnish, Italian, Latvian, Lithuanian, Polish, Portuguese, Romanian, Slovenian); 4 have a similar formulation 5 are like the German text (the plaintiff “is entitled to compensation”: Bulgarian, Estonian, German, Greek, Hungarian), and 3 are like the German text 2 others have a similar formulation (the plaintiff “has [a claim for/the right to] compensation”: Croatian, German, Slovak). Only 5 seem to have a contingent text like the English (the plaintiff “shall have the right to [receive] compensation”: English, Maltese, Spanish, Swedish; the plaintiff “shall be entitled to compensation”: Irish).
Moreover, of the three EEA countries, Norway has begun the process of incorporating the GDPR. The literal English translation of the Norwegian text is “shall be entitled to receive compensation”, which is a sixth example of a contingent “shall”.
All help in confirming whether this is an accurate assessment or not – via the comments below, or better via the contact page on this blog – will be very gratefully appreciated indeed. [Note: as you can see, this paragraph has been updated to reflect a consensus on the German text which is different from my own initial assessment; this is exactly why I’m grateful for all help].