Introduction
On 23 October 2024, the APPLIED project, led by Francesca Episcopo, Anna van Duin, and Jef Ausloos, hosted an expert workshop at the University of Amsterdam. APPLIED – Assessing Private Parties Litigation in the Economy of Data – examines the role and effectiveness of collective private enforcement (CPE) in data protection law across the EU. Bringing together academics from different areas, notably private law and privacy law experts, the workshop sought to address the potential of CPE to ensure access to justice and effective judicial protection, particularly within the context of the GDPR and the Representative Action Directive (RAD). This report provides a summary of the discussions, key themes, and insights shared during the event.
Project Setup and Key Findings
The workshop was framed around the APPLIED project’s three main objectives:
- Developing an overview of CPE applications in data protection law across European jurisdictions to map existing mechanisms and identify obstacles.
- Evaluating the effectiveness of CPE, with a focus on procedural and substantive challenges.
- Exploring broader implications of CPE for data protection rights and broader societal interests, including the balance between public and private enforcement.
The workshop opened with a presentation of the project team. The research combines desk studies and interviews to explore the evolving landscape of collective private enforcement (CPE) in data protection law, with a focus on six European jurisdictions: the Netherlands, Belgium, France, Germany, Italy, and Austria.
As part of the APPLIED project, country-specific reports were developed to provide a comparative analysis of CPE mechanisms in the six selected jurisdictions. These reports delve into the legal frameworks, procedural venues, and remedies available in each country, offering a detailed examination of how collective actions are implemented and the obstacles they face. The reports underscore the diversity in national approaches, from the Netherlands’ proactive stance to legal and practical barriers observed in other jurisdictions. These reports can be accessed through the project’s country reports page.
The preliminary results of the interviews, conducted with stakeholders across the six selected jurisdictions, provided critical insights into the practical challenges and opportunities of CPE. The interviews revealed significant variations in actors involved in bringing collective actions, how cases are developed, and how they are perceived. Key challenges identified included the lack of clarity and uniformity in procedural rules, funding constraints faced by qualified entities, and quantification of damages. Additionally, the interviews highlighted the tension between public and private enforcement, as well as the pivotal role of third-party litigation funding with accurate safeguards in supporting collective actions. These results provided a rich foundation for the workshop discussions and informed many of the debates during the event.
These insights set the stage for the workshop’s discussions, which aimed to contextualise and refine these findings through expert input.
Keynotes and Thematic Discussions
- European Collective Redress and Representation
Rhonson Salim (Aston University) emphasised the single and highly complex concept of representation in collective actions. He argued that effective representation requires a balance between trustee and delegate models to ensure autonomy for both representatives and represented parties. A “representation gap,” particularly evident in the RAD, risks undermining accountability by limiting individual participation in collective actions.
Jagna Mucha (University of Warsaw) highlighted significant differences in the legal culture surrounding representative actions across jurisdictions. While the Netherlands has embraced a robust “class action culture,” other EU Member States, such as Poland, lag behind due to judicial reluctance and lack of financial resources. CPE has existed in Poland for more than a decade, but jurisprudential developments as regards this matter are scarce – and the length of the procedures remains a concern. Mucha stressed the importance of specialised courts and third-party litigation funding (TPLF) in overcoming these obstacles, albeit with safeguards to prevent abuse.
Willem van Boom (Radboud University Nijmegen) observed that CPE has a paramount role for compensating consumers, but he challenged the notion of mass data protection claims as a self-standing field; enforcement issues related to scattered damages occur in other areas as well. In addition, he warned that the monetisation of societal losses through private damages risks distorting their original purpose. Instead, he advocated for a pan-European approach to mass litigation, integrating public and private enforcement mechanisms.
- Strategic Litigation and Digital Rights
Marta Morvillo (University of Amsterdam) discussed the interplay between strategic litigation and mass data protection claims, emphasising the need to understand the multitude of interests composing the broader dynamic whilst aiming for an alignment amongst those diverse agendas. Within this discussion, Morvillo highlighted the tension between using litigation for enforcement versus broader systemic change, calling for a holistic approach that considers both individual and collective interests.
Swee Leng Harris (Legal Strategies & Tech Policy Consultant) noted a key tension in framing GDPR violations as either individual or collective harms, cautioning against reducing fundamental rights to mere monetary claims. Harris also highlighted the importance of carefully setting strategic litigation goals and aligning them with available legal mechanisms, while critiquing the narrative that Europe should avoid a U.S.-style litigation culture.
Alexandra Giannopoulou (Digital Freedom Fund) underscored the societal impact of data protection and the importance of specialised public interest associations in driving strategic litigation. These entities act as catalysts for change in EU digital policy, bridging legal expertise and grassroots activism. However, the lack of legal certainty and uniformity across jurisdictions remains a significant barrier.
Questions from participants concerned, among other things, opt-in and opt-out mechanisms as a way of addressing accountability for unlawful data practices, the importance of book-building, and the question of pursuing public goals in private law courts.
- Data and Platform Regulation
Gloria González Fuster (Vrije Universiteit Brussel) examined Article 80 GDPR, emphasising its focus on representation and mediation over collective litigation. She highlighted disparities in its interpretation across jurisdictions and stressed the importance of a balanced view of data subjects as rights protectors rather than adversaries, encouraging broader use of Article 80 to empower claimants.
Thomas Streinz (European University Institute) addressed the intersections of data protection litigation with other forms of digital regulation. He emphasised the potential conflicts between enforcement mechanisms and called for an integrated approach that aligns collective and strategic litigation with broader regulatory objectives to bridge public and private enforcement gaps.
Damian Clifford (Australian National University) focused on the challenges posed by non-material damages, stressing their growing significance in data protection litigation. He advocated for clearer frameworks to address such harms, particularly in cross-border cases, to enhance the consistency and fairness of judicial outcomes in data protection disputes.
- Remedies and Funding
Jos Hoevenaars (Erasmus University Rotterdam) noted that funding is central aspect which enables and drives CPE – however, variations across jurisdictions hinder the potential of the mechanism. This lack of harmonisation is also observed when it comes to the role of insurers. Moreover, Hoevenaars highlighted the potential of mechanisms like WAMCA in the Netherlands to influence the commercial viability and accessibility of collective claims across Europe.
Vaclav Janecek (University of Bristol) highlighted among other things the need for greater specificity and clarity in addressing remedies within data protection litigation. He distinguished between mass violations and mass harms, emphasising that remedies should reflect the specific nature of GDPR violations. Similarly, he found that there is a need to recalibrate between GDPR and privacy-related issues.
Dorota Leczykiewicz (University of Oxford) considered that remedies ought to be re-conceptualised within a framework of corrective justice. She discussed the challenges of quantifying harm in data protection cases, particularly in collective contexts, and proposed exploring how tort law principles could better address these issues. Leczykiewicz also advocated for greater profitability in TPLF and for the use of test cases for the establishment of precedents which could potentially clarify the relationship between private enforcement and public interest in data protection law.
Key Insights
- Fragmentation Across Jurisdictions
Participants noted stark differences in how CPE mechanisms are implemented and perceived across Member States. The Netherlands was praised and critiqued for its proactive use of ad hoc foundations and collective actions, in contrast to other jurisdictions where there is limited or no activity in this field. - Accountability in Representation
Ensuring accountability in representative actions emerged as a recurring theme. Suggestions included continuous communication between representatives and class members and the development of specialised courts to build institutional knowledge. Judicial training and awareness campaigns could foster greater understanding of CPE among stakeholders. - Tension Between Private and Public Enforcement
The discussion highlighted the interplay between private and public enforcement mechanisms. Participants debated whether private law could effectively serve public law values, with some arguing for clearer delineation of roles and others advocating for integrated approaches. - Strategic and Mass Claims
Strategic litigation was recognised as a tool for systemic change but requires careful alignment of goals. Participants emphasised the importance of funding in ensuring the viability of CPE, but opinions differed on the best approach. Public funding was seen by some as a means to support access to justice without introducing profit-driven motives, while others highlighted the potential of third-party litigation funding to bring expertise and resources.
Conclusion
The workshop provided valuable insights into the challenges and opportunities in collective private enforcement of data protection law. By fostering dialogue among experts with diverse backgrounds, it highlighted the need for a holistic approach that integrates procedural safeguards, funding mechanisms, and cultural shifts. As the EU continues to refine its legal frameworks, projects like APPLIED will play a crucial role in shaping the future of data protection litigation.
This report was prepared by Anna van Duin and Emmanuel Ladji Inga, with input from Iris Brafine and Francesca Episcopo, as part of the APPLIED project under the Digital Transformation of Decision-Making initiative at the Amsterdam Law School. For more information about the project, click here: https://act.uva.nl/research/research-projects/applied/applied.html
(Photo: Pietro Jeng)