This summer, the Western High Court (Vestre Landsret) of Denmark made a reference for a preliminary ruling under Article 267 TFEU to the Court of Justice of the European Union on the issue of fines for companies that have admitted to breaches of GDPR.
This new case has been lodged at the CJEU as Case C-383/23, Public Prosecution Service v ILVA A/S.
Previously, before Aarhus City Court (Retten i Aarhus), Denmark, ILVA A/S was fined 100,000 DKK for breaching the personal data of natural persons under the General Data Protection Regulation (GDPR). The Public Prosecution Service is appealing that fine, as the Public Prosecution Service believed it had acted ‘intentionally’, whereas the Aarhus City Court had found that ILVA A/S had only acted ‘negligently’. The Public Prosecution Service was seeking a fine of 1.5 million DKK to be levied on ILVA A/S.
ILVA A/S is part of a larger group of companies. ILVA A/S had an annual turnover of 1.8 billion DKK, whereas the group it is part of had a turnover of 6.57 billion DKK in the year concerned.
The ILVA A/S case centres around interpretation of Article 83(5) of the GDPR. The referring national court has considered that uncertainty arises as to whether the term ‘undertaking’ in Article 83(5) of the GDPR should be understood as meaning that, when setting a fine for an undertaking’s infringement of the GDPR, regard must be had to the turnover of the group of which the company forms part.
The Public Prosecution Service argues that the term ‘undertaking’ in Article 83(5) of the GDPR should be understood as taking into account the turnover of the entire group of companies, in line with competition law (Articles 101-102 TFEU). ILVA A/S, on the other hand, argues that charges were only taken against it, ILVA A/S, and not the company group that it is a part of.
The full reference for a preliminary ruling in Case C-383/23, ILVA A/S, sent by the Western High Court (Vestre Landsret), can be found on the CJEU’s website here.
Written exchanges of argument before the Court have commenced, with an oral hearing likely to be held in Spring 2024.