The GDPR

The Regulation introduces a suspension mechanism when an action against a controller or a processor with the same scope is introduced simultaneously before the courts of several Member States.

Thus, where a competent court has information on proceedings, concerning the same subject matter that is pending in a court in another Member State, it shall first check this information with the court concerned (paragraph 1). Where proceedings concerning the same subject matter as regards processing of the same controller or processor, any competent court other than the court first seized may suspend its proceedings (paragraph 2).

In addition to the suspension procedure, paragraph 3 provides for the possibility for the court subsequently seized to waive competence in favour of the court first seized, at the request of one of the parties. It is necessary however that the procedure in question is pending at first instance, the court first seized must be competent to consider all the requests and the applicable national law must allow such a consolidation.

We can easily imagine that the objective of the Union legislature is to prevent several courts in different Member States from releasing contradictory decisions concerning the same subject matter with respect to the operations of the same controller.

The Directive

The Directive included no similar provision.

Potential issues

First, how will the courts subsequently seized be informed of the existence of prior proceedings before the courts of another Member State as presumably, it will be in the interest of the controller or its subcontractor or the processor to report this.

The risk of contradiction is not excluded as Article 81 does not require the courts subsequently seized to suspend the current procedure but only leaves them the option to do so at their discretion.