3 ms·

>one of the points made is that the EU tends to not apply the maximum penalty immediately based on the severity of the offence and whether it's a repeat offende

>one of the points made is that the EU tends to not apply the maximum penalty immediately based on the severity of the offence and whether it's a repeat offender. But this is how it's done because it's standard practice, not because the law stops them from doing it.

SiempreViernes 8y ago
So you seriously think that the only thing that prevents people killing each other is that there is a law against it? Morals work by adjusting to the expectations of your peers, laws simply codify the expectations and serve primarily to regulate which infractions can be punished.
- Mirioron 8y ago
  We're not talking about a general case situation though. We're talking about dealing with rather specific companies where a lot of money moves around. While laws against murder might not affect whether the general public kills one another, it probably does affect a business environment that is cut-throat.
NeedMoreTea 8y ago
You might want to look up the EU requirement for proportionality in penalties, and the ECJ cases where a regulation or penalty was found not to be proportionate, before claiming there is no law that stops them from doing that. It applies to everything EU wide. That's quite apart from it already being well established in national laws of many member states. https://www.europeanlawmonitor.org/eu-legal-principles/eu-law-what-is-the-principle-of-proportionality-a-subsidiarity.html https://www.europeanlawmonitor.org/eu-legal-principles/eu-la... https://en.wikipedia.org/wiki/General_principles_of_European_Union_law#Proportionality https://en.wikipedia.org/wiki/General_principles_of_European...
- Mirioron 8y ago
  Interesting. Thank you. But what's the point of setting upper limits to fines at all then? GDPR says that the maximum penalty is 4% of global revenue or 20 million euros, whichever is greater. If proportionality is a concept that's followed so well, then why have upper limits at all? Why word it in a way that clearly hurts smaller businesses more?
  - NeedMoreTea 8y ago
    It doesn't work like that. I think it was Germany first introduced proportionality into sentencing, in the later 19th century. They still have maximum penalties for offences. The maximum allows a regulator or judge to frame the seriousness of offence within those limits, with fewer surprises, and across the range of legislated offences, as intended by the legislature. A proportionate fine for a first offence, technical breach by a multinational like Nestle or Google, who should have plenty of people in legal, might be a gentle €50 million slap on the wrist. As we can see from this very discussion, there's been a couple of comments along the lines of "...but that's too small to hurt, why bother?". A proportionate penalty for a Google or Facebook on a fifth offence, showing a wilful attempt to dark pattern around the law, might well turn out to be €4% of global. It's no different to setting criminal offences with a maximum of ten years in jail and finding most get a fine, and just a few get jail, let alone a maximum term. A proportionate first offence penalty for a 5 person early startup, who made a minor breach, might receive a helpful, but sternly worded letter to help them comply. The same 5 person startup showing a wilful, habitual pattern of breach might get (plucks number out of the air) a €20k fine for their fifth offence. Probably levied after providing proof of their revenue and profit. The point is supposed to balance the need to a) enough to encourage them to not do it again, and b) not nuke them from orbit. It doesn't clearly hurt a smaller business more. It's meant to hurt each about the same: "enough to achieve compliance". Intent and extent will affect what is enough too. The aim is compliance, not revenue, or remaking some sort of financial equivalent of the Bloody Code. A bankrupt business cannot comply and generates no revenue. Mistakes, disappointingly large or small penalties and the subsequent appeals will happen, such is the nature of all law, everywhere. IANAL or I might have explained that better. :)

SiempreViernes 8y ago

So you seriously think that the only thing that prevents people killing each other is that there is a law against it? Morals work by adjusting to the expectations of your peers, laws simply codify the expectations and serve primarily to regulate which infractions can be punished.

Mirioron 8y ago
We're not talking about a general case situation though. We're talking about dealing with rather specific companies where a lot of money moves around. While laws against murder might not affect whether the general public kills one another, it probably does affect a business environment that is cut-throat.

NeedMoreTea 8y ago

You might want to look up the EU requirement for proportionality in penalties, and the ECJ cases where a regulation or penalty was found not to be proportionate, before claiming there is no law that stops them from doing that. It applies to everything EU wide. That's quite apart from it already being well established in national laws of many member states. https://www.europeanlawmonitor.org/eu-legal-principles/eu-law-what-is-the-principle-of-proportionality-a-subsidiarity.html https://www.europeanlawmonitor.org/eu-legal-principles/eu-la... https://en.wikipedia.org/wiki/General_principles_of_European_Union_law#Proportionality https://en.wikipedia.org/wiki/General_principles_of_European...

Mirioron 8y ago
Interesting. Thank you. But what's the point of setting upper limits to fines at all then? GDPR says that the maximum penalty is 4% of global revenue or 20 million euros, whichever is greater. If proportionality is a concept that's followed so well, then why have upper limits at all? Why word it in a way that clearly hurts smaller businesses more?
- NeedMoreTea 8y ago
  It doesn't work like that. I think it was Germany first introduced proportionality into sentencing, in the later 19th century. They still have maximum penalties for offences. The maximum allows a regulator or judge to frame the seriousness of offence within those limits, with fewer surprises, and across the range of legislated offences, as intended by the legislature. A proportionate fine for a first offence, technical breach by a multinational like Nestle or Google, who should have plenty of people in legal, might be a gentle €50 million slap on the wrist. As we can see from this very discussion, there's been a couple of comments along the lines of "...but that's too small to hurt, why bother?". A proportionate penalty for a Google or Facebook on a fifth offence, showing a wilful attempt to dark pattern around the law, might well turn out to be €4% of global. It's no different to setting criminal offences with a maximum of ten years in jail and finding most get a fine, and just a few get jail, let alone a maximum term. A proportionate first offence penalty for a 5 person early startup, who made a minor breach, might receive a helpful, but sternly worded letter to help them comply. The same 5 person startup showing a wilful, habitual pattern of breach might get (plucks number out of the air) a €20k fine for their fifth offence. Probably levied after providing proof of their revenue and profit. The point is supposed to balance the need to a) enough to encourage them to not do it again, and b) not nuke them from orbit. It doesn't clearly hurt a smaller business more. It's meant to hurt each about the same: "enough to achieve compliance". Intent and extent will affect what is enough too. The aim is compliance, not revenue, or remaking some sort of financial equivalent of the Bloody Code. A bankrupt business cannot comply and generates no revenue. Mistakes, disappointingly large or small penalties and the subsequent appeals will happen, such is the nature of all law, everywhere. IANAL or I might have explained that better. :)