Article 83
General conditions for imposing administrative fines
(55) Whereas, if the controller fails to respect the rights of data subjects, national legislation must provide for a judicial remedy; whereas any damage which a person may suffer as a result of unlawful processing must be compensated for by the controller, who may be exempted from liability if he proves that he is not responsible for the damage, in particular in cases where he establishes fault on the part of the data subject or in case of force majeure; whereas sanctions must be imposed on any person, whether governed by private of public law, who fails to comply with the national measures taken under this Directive;
Regulation
1. Each supervisory authority shall ensure that the imposition of administrative fines pursuant to this Article in respect of infringements of this Regulation referred to in paragraphs 4, 5 and 6 shall in each individual case be effective, proportionate and dissuasive. 2. Administrative fines shall, depending on the circumstances of each individual case, be imposed in addition to, or instead of, measures referred to in points (a) to (h) and (j) of Article 58(2). When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case due regard shall be given to the following: (a) the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them; (b) the intentional or negligent character of the infringement; (c) any action taken by the controller or processor to mitigate the damage suffered by data subjects; (d) the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32; (e) any relevant previous infringements by the controller or processor; (f) the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement; (g) the categories of personal data affected by the infringement; (h) the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement; (i) where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures; (j) adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and (k) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement. 3. If a controller or processor intentionally or negligently, for the same or linked processing operations, infringes several provisions of this Regulation, the total amount of the administrative fine shall not exceed the amount specified for the gravest infringement. 4. Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 10 000 000 EUR, 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 the controller and the processor pursuant to Articles 8, 11, 25 to 39 and 42 and 43; (b) the obligations of the certification body pursuant to Articles 42 and 43; (c) the obligations of the monitoring body pursuant to Article 41(4). 5. Infringements of the following provisions shall, in accordance with paragraph 2, 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: (a) the basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7 and 9; (b) the data subjects' rights pursuant to Articles 12 to 22; (c) the transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 44 to 49; (d) any obligations pursuant to Member State law adopted under Chapter IX; (e) non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58(2) or failure to provide access in violation of Article 58(1). 6. Non-compliance with an order by the supervisory authority as referred to in Article 58(2) shall, in accordance with paragraph 2 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. 7. Without prejudice to the corrective powers of supervisory authorities pursuant to Article 58(2), each Member State may lay down the rules on whether and to what extent administrative fines may be imposed on public authorities and bodies established in that Member State. 8. 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. 9. 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 25 May 2018 and, without delay, any subsequent amendment law or amendment affecting them. |
Directive
Art. 24 The Member States shall adopt suitable measures to ensure the full implementation of the provisions of this Directive and shall in particular lay down the sanctions to be imposed in case of infringement of the provisions adopted pursuant to this Directive. |
Netherlands
Title 5.4 Awb: Administrative fine Section 5.4.1. General provisions Article 5:40 1. An administrative fine is defined as: the sanctioning sanction, meaning an unconditional obligation to pay a sum of money. 2. This title does not apply to the withdrawal or modification of an entitlement to financial resources. Article 5:41 The administrative body shall not impose an administrative fine in so far as the offender cannot be blamed for the violation. Article 5:42 1. The administrative body shall not impose an administrative fine if the offender has died. 2. An administrative fine lapses if it is not irrevocable at the time of the offender's death. An irrevocable administrative fine shall lapse if it has not yet been paid at that time. Article 5:43 The administrative body shall not impose an administrative fine if the offender has already been subject to an administrative fine for the same violation, or if a notification as referred to in Article 5:50, second paragraph, opening words and part a, has been published. Article 5:44 1. The administrative body shall not impose an administrative fine if criminal proceedings have been instituted against the offender for the same conduct and the investigation has started in court, or if a criminal order has been issued. 2. If the conduct is also an offence, it shall be submitted to the public prosecutor's office, unless it has been laid down in a statutory provision or it has been agreed with the public prosecutor's office that it may be dispensed with. 3. The administrative authority shall impose an administrative fine only if the conduct has to be referred to the Public Prosecutor: a. the Public Prosecutor has informed the administrative body that he will not prosecute the offender; or b. the administrative body has not received a response from the public prosecutor within thirteen weeks. Article 5:45 1. If Article 5:53 applies, the authority to impose an administrative fine lapses five years after the violation has taken place. 2. In other cases, the authority to impose an administrative fine expires three years after the violation has taken place. 3. If an objection is made to the administrative fine or an appeal is lodged, the expiry period is suspended until a final decision has been made on the objection or appeal. Article 5:46 1. The law determines the maximum administrative fine that can be imposed for a particular violation. 2. Unless the amount of the administrative fine is set by a statutory provision, the administrative body shall adjust the administrative fine according to the gravity of the offence and the extent to which it can be attributed to the offender. In doing so, the administrative authority shall, where appropriate, take into account the circumstances in which the offence was committed. 3. If the amount of the administrative fine is set by a statutory provision, the administrative body shall nevertheless impose a lower administrative fine if the offender demonstrates that the administrative fine set is too high for special circumstances. 4. Article 1(2) of the Penal Code shall apply mutatis mutandis. Article 5:47 An administrative fine imposed for an act that is also a criminal offence shall lapse if the court of appeal, pursuant to Article 12i of the Code of Criminal Procedure, orders the prosecution of the offender for that act. Section 5.4.2. The procedure Article 5:48 1. The administrative body and the competent supervisor for the violation may draw up a report of the violation. 2. The report is dated and states: a. the name of the offender; b. the violation as well as the violated regulation; c. if necessary, an indication of the place and time where and when the violation was observed. 3. A copy of the report shall be sent or handed over to the offender no later than the publication of the decision imposing the administrative fine. 4. If a report on the violation has been drawn up as referred to in Article 152 of the Code of Criminal Procedure, this will replace the report for the purposes of this section. Article 5:49 1. If requested, the administrative body shall give the offender the opportunity to inspect the data on which the imposition of the administrative fine, or the intention to do so, is based, and to take copies thereof. 2. Insofar as it appears that the defence of the offender reasonably requires this, the administrative body shall ensure as much as possible that this information is communicated to the offender in a language that is comprehensible to the offender. Article 5:50 1. If the offender is given the opportunity to express his views on the intention to impose an administrative fine, a. the report shall be sent or issued to the offender as soon as he is invited to do so; b. the administrative body shall arrange for the assistance of an interpreter, if it appears that the defence of the offender reasonably requires this. 2. If, after the offender has expressed his opinion, the administrative body decides to do so: a. no administrative fine will be imposed for the violation, or b. the offence will still be submitted to the public prosecutor, the offender shall be informed of this in writing. Article 5:51 1. If a report has been drawn up on the violation, the administrative body shall decide whether to impose the administrative fine within thirteen weeks of the date of the report. 2. The period for making a decision shall be suspended with effect from the day on which the conduct is submitted to the Public Prosecution Service, until the day on which the administrative body is again authorised to impose an administrative fine. Article 5:52 The decision to impose the administrative fine shall state: a. the name of the offender; b. the amount of the fine. Article 5:53 1. This article applies if an administrative fine of more than € 340 can be imposed for the violation, unless otherwise provided by a statutory provision. 2. Contrary to Article 5:48, a report or record shall always be drawn up of the violation. 3. Contrary to Section 4.1.2, the offender will always be given the opportunity to express his views. Article 5:54 This title shall apply mutatis mutandis to other punitive sanctions, in so far as this is provided for by a statutory provision. |