[2024] UKUT 105 (AAC)

Next we turn to Mr Pitt-Payne’s contention that, even if the FTT had Article 5(1)(a) in mind, they failed to identify what the transparency principle required in these circumstances, before arriving at their conclusion.

We do not accept this submission. We have summarised the transparency principle at [95] above, where we have explained that in the areas where the GDPR is non-prescriptive, the answer to what transparency requires will be context specific. As we have already noted, the FTT correctly recognised this at [121] of their decision. Transparency is not defined in the GDPR and it would not have been helpful if the FTT had tried to provide a definition of this concept or put a gloss upon its meaning. Whilst the FTT did not in terms identify a list of relevant, or potentially relevant features, as we did at [95] above, we are satisfied that in practice they adopted the approach that we have outlined. It was somewhat telling that when we asked Mr Pitt-Payne what else the FTT should have said in terms of identifying the transparency standard that they were applying, his answer did not engage with this point, rather his reply reiterated other aspects of the alleged Ground 1 errors, namely that the FTT failed to take into account the nature of the processing, its surprising aspects and the Article 21(2) right to object.