View source for BVerfG - 1 BvR 2853/19

{{COURTdecisionBOX

|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=BVerfG
|Court_With_Country=BVerfG (Germany)

|Case_Number_Name=1 BvR 2853/19
|ECLI=ECLI:DE:BVerfG:2021:rk20210114.1bvr285319

|Original_Source_Name_1=Bundesverfassungsgericht
|Original_Source_Link_1=http://www.bverfg.de/e/rk20210114_1bvr285319.html
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE

|Date_Decided=14.01.2021
|Date_Published=
|Year=2021

|GDPR_Article_1=Article 82 GDPR
|GDPR_Article_Link_1=Article 82 GDPR

|EU_Law_Name_1=Article 267(3) TFEU
|EU_Law_Link_1=http://data.europa.eu/eli/treaty/tfeu_2016/art_267/oj

|National_Law_Name_1=Article 101(1) GG
|National_Law_Link_1=https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0564

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|Party_Name_3=
|Party_Link_3=
|Party_Name_4=
|Party_Link_4=
|Party_Name_5=
|Party_Link_5=

|Appeal_From_Body=AG Goslar
|Appeal_From_Case_Number_Name=28 C 7/19
|Appeal_From_Status=
|Appeal_From_Link=
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German Constitutional Cour rules that AG Goslar (Goslar Local Court ) should not have decided, without a reference to the Court of Justice of the European Union for a preliminary ruling.

== English Summary ==

=== Facts ===
A data subject filed constitutional complaint because the AG Goslar (Goslar Local Court) diened his claims under Article 82 GDPR becuase of an unsolicited email. 

Because he only claimed 500 EUR as compensation the Goslar Local Court  was the regular last instance under German law.

The Goslar Local Court denied the preliminary ruling from the CJEU.

=== Dispute ===
Was the Goslar Local Court obliged to hear the CJEU for a prelimary ruling?

=== Holding ===
The judgment of the Goslar Local Court of 27 September 2019 - 28 C 7/19 - violates the complainant's fundamental right under Article 101(1) sentence 2 of the Basic Law. The judgment is set aside. The matter is referred back to the Goslar Local Court for a new hearing and decision. This renders the order of the Goslar Local Court of 11 November 2019 - 28 C 7/19 - irrelevant. 

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

<pre>
FEDERAL CONSTITUTIONAL COURT

- 1 BvR 2853/19 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint
   of Mr R..,

against
a) the order of the Goslar Local Court
   of 11 November 2019 - 28 C 7/19 -,

b) the judgment of the Goslar Local Court
   of 27 September 2019 - 28 C 7/19 -.

the 2nd Chamber of the First Senate of the Federal Constitutional Court by

the judges Paulus,
Christ
and Judge Härtel

unanimously decided on 14 January 2021:

1. The judgment of the Goslar Local Court of 27 September 2019 - 28 C 7/19 - violates the complainant's fundamental right under Article 101(1) sentence 2 of the Basic Law. The judgment is set aside. The matter is referred back to the Goslar Local Court for a new hearing and decision. This renders the order of the Goslar Local Court of 11 November 2019 - 28 C 7/19 - irrelevant.

2. The Land of Lower Saxony shall reimburse the appellant for his necessary expenses.

R e a s o n s :

The constitutional complaint is directed against the partial dismissal of a civil law action and concerns the obligation to refer the case to the Court of Justice of the European Union pursuant to Article 267 (3) TFEU.

I.

1. The complainant, who works as a lawyer, received a promotional email from the defendant in the main proceedings to his professional email address on 7 December 2018. It remained disputed between the parties whether the complainant had previously placed an order with the defendant in the main proceedings and thereby consented to the sending of advertising emails. By letter of the same day, the complainant sent a warning to the defendant in the main proceedings.

By application of 7 January 2019, the complainant sought, first, an order that the defendant in the main proceedings refrain from contacting him or having him contacted by email for advertising purposes without his express consent, second, information on the data stored concerning him, thirdly, to declare that the claims asserted arose from an intentional tortious act, and fourthly, to order the defendant to pay damages for pain and suffering, the amount of which was left to the discretion of the court, but which should not be less than the sum of 500 euros. The complainant justified the damages to be paid with reference to Article 82(1) of the General Data Protection Regulation (Regulation [EU] 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC, OJ L 119 of 4 May 2016; hereinafter: GDPR), which provides for appropriate damages for culpable breaches of the provisions of the GDPR. In the present case, his email address had been used in breach of data protection law within the meaning of Article 6 of the GDPR because it had been used without his consent.

2. By the challenged judgement of 27 September 2019, the Local Court granted the action with regard to the asserted claim for injunctive relief and the claim for information. In all other respects, it dismissed the action. Whether the case-law of the Federal Court of Justice on cases not influenced by EU law, according to which monetary compensation for infringement of personality rights requires a serious interference that cannot be satisfactorily compensated in another way, also applies to the claim asserted here and based on Article 82 of the GDPR, appears questionable in view of sentence 3 of recital 146 of the GDPR. In the case in dispute, however, no damage was apparent. It was only a single advertising email which had not been sent at an inopportune time, which clearly showed that it was advertising due to its external appearance and which did not make it necessary to deal with it for a longer period of time.

3. After the rejection of a notice of hearing, the complainant complains with the constitutional complaint of a violation of Article 101.1 sentence 2 of the Basic Law.

4. The files of the original proceedings were available. The Federal Constitutional Court gave the Lower Saxony Ministry of Justice and the defendant in the original proceedings the opportunity to comment.

II.

The Chamber accepts the admissible constitutional complaint for decision and allows it because this is appropriate in order to enforce the complainant's right to the lawful judge pursuant to Article 101.1 sentence 2 of the Basic Law that is alleged to have been violated, § 93a.2 letter b of the BVerfGG. This decision can be taken by the Board because the relevant constitutional questions have already been decided by the Federal Constitutional Court and the constitutional complaint is therefore obviously well-founded, § 93c.1 sentence 1 BVerfGG.

1. The Local Court violated the complainant's right to the lawful judge by acting at last instance on the basis of the partial dismissal of the action, the appellate complaint (§ 511.2 no. 1 of the Code of Civil Procedure) that was not thereby obtained for the complainant and the appeal that was not admitted and by refraining from making a reference for a preliminary ruling to the Court of Justice of the European Union contrary to Article 267.3 TFEU.

a) The Court of Justice of the European Union is a statutory judge within the meaning of Article 101.1 sentence 2 of the Basic Law (see BVerfGE 73, 339 <366>; 82, 159 <192>; 126, 286 <315>; 128, 157 <186 et seq. marginal no. 177>). Under the conditions of Article 267 (3) TFEU, the national courts are obliged to refer the matter to the Court of Justice of their own motion (cf. BVerfGE 82, 159 <192 f.>; 128, 157 <187>; 129, 78 <105>). It may constitute a deprivation of the statutory judge if a national court does not comply with its duty to refer a matter to the Court of Justice by way of preliminary ruling proceedings pursuant to Article 267 (3) TFEU (cf. BVerfGE 73, 339 <366 f.>; 82, 159 <192 ff.>; 135, 155 <230 f. marginal no.177>; established case-law).

According to the case law of the Court of Justice of the European Union (ECJ, Judgment of 6 October 1982, C.I.L.F.I.T., C-283/81, EU:C:1982:335, para. 21; judgment of 15 September 2005, C-495/03, EU:C:2005:552, para. 33; judgment of 6 December 2005, C-461/03, EU:C:2005:742, para. 16; established case-law), a national court of last instance must comply with its obligation to make a reference if a question of Union law arises in proceedings pending before it, unless the court has established that the question raised is not relevant to the decision, that the provision of Union law in question has already been the subject of an interpretation by the Court of Justice (acte éclairé) or that the correct application of Union law is so obvious that there is no room for reasonable doubt (acte clair) (see also BVerfGE 82, 159, 159). also BVerfGE 82, 159 <193>; 128, 157 <187>; 129, 78 <105 et seq.>; 140, 317 <376 marginal no. 125>; 147, 364 <378 et seq. marginal no. 37>). However, the domestic court may only assume this if it is convinced that the courts of the other Member States and the Court of Justice of the European Union would also have the same certainty. Only then may the court refrain from making a reference and resolve the question on its own responsibility (see ECJ, Judgment of 6 October 1982, C.I.L.F.I.T., C-283/81, EU:C:1982:335, para. 16).

These principles also apply to the provision on jurisdiction under Union law in Article 267 (3) TFEU. Therefore, not every violation of the obligation to refer under Union law also constitutes a violation of Article 101.1 sentence 2 of the Basic Law (see BVerfGE 126, 286 <315>; 147, 364 <380 marginal no. 40>). The Federal Constitutional Court only reviews whether the interpretation and application of the rule of jurisdiction of Article 267.3 TFEU no longer appears comprehensible and is obviously untenable when the ideas determining the Basic Law are comprehended (cf. BVerfGE 126, 286 <315 et seq.>; 128, 157 <187>; 129, 78 <106>). By withdrawing the constitutional review, the specialised courts retain a leeway of their own assessment and evaluation in the interpretation and application of Union law, which corresponds to that in the handling of provisions of the German legal system under simple law. The Federal Constitutional Court alone monitors compliance with the limits of this leeway (cf. BVerfGE 126, 286 <316>). It is not a "supreme referral control court" (cf. BVerfGE 126, 286 <316>; 135, 155 <231 et seq. marginal no. 180>; 147, 364 <379 et seq. marginal no. 39>; BVerfGK 13, 506 <512>; 14, 230 <233>; 16, 328 <336>; BVerfG, Decision of the First Chamber of the Second Senate of 9 November 1987 - 2 BvR 808/82 -, NJW 1988, p. 1456 [1457]).

The obligation to make a reference under Article 267 TFEU to clarify the interpretation of provisions of Union law is unconstitutionally handled if a court of last instance does not consider a reference at all despite the - in its view - relevance of the question of Union law for a decision, although it itself has doubts as to the correct answer to the question (fundamental misapprehension of the obligation to make a reference; cf. BVerfGE 82, 159 <195 f.>; 126, 286 <316 f.>; 128, 157 <187 f.>; 129, 78 <106 f.>; 135, 155 <232 marginal no. 181>; 147, 364 <380 marginal no. 41>).

The same applies in cases in which the court of last instance deliberately deviates in its decision from the case-law of the Court of Justice on questions relevant to the decision and nevertheless does not submit or does not submit again (deliberate deviation from the case-law of the Court of Justice without willingness to submit; cf. BVerfGE 75, 223 <245>; 82, 159 <195>; 126, 286 <316 f.>; 128, 157 <187 f.>; 129, 78 <106 f.>; 135, 155 <232 marginal no. 182>; 147, 364 <381 marginal no. 42>).

If relevant case-law of the Court of Justice of the European Union is not yet available on a question of Union law that is relevant to the decision or if it has possibly not yet answered the question that is relevant to the decision exhaustively or if a further development of the case-law of the Court of Justice does not only appear to be a remote possibility (incompleteness of the case-law), Art. 101.1 sentence 2 of the Basic Law is violated if the court of final instance has exceeded in an unjustifiable manner the scope of assessment to which it is necessarily entitled in such cases (see BVerfGE 82, 159 <195 f.>; 126, 286 <316 f.>; 128, 157 <187 f.>; 129, 78 <106 f.>; 135, 155 <232 f. marginal no. 183>). This may be the case in particular if possible opposing views on the question of Union law relevant to the decision are clearly preferable to the opinion held by the court (cf. BVerfGE 82, 159 <195 f.>; BVerfGK 10, 19 <29>). At any rate, in the case of an arbitrary assumption of an "acte clair" or an "acte éclairé" by the specialised courts, the scope of assessment is exceeded in an unjustifiable manner (cf. BVerfGE 135, 155 <232 f. marginal no. 183>; 147, 364 <381 marginal no. 43>).

In this context, it must also be examined whether the court has made itself sufficiently aware of Union law. It must evaluate any relevant case-law of the Court of Justice of the European Union and base its decision on it (see BVerfGE 82, 159 <196>; 128, 157 <189>). On this basis, the specialised court must, by applying and interpreting substantive Union law (cf. BVerfGE 75, 223 <234>; 128, 157 <188>; 129, 78 <107>), form the justifiable conviction that the legal situation is either clear from the outset ("acte clair") or clarified by case-law in a way that leaves no reasonable doubt ("acte éclairé"; cf. BVerfGE 129, 78 <107>). If it has not done so, it regularly fails to recognise the conditions for the obligation to refer. In addition, the specialised court must state reasons that enable the Federal Constitutional Court to review the standard of Article 101.1 sentence 2 of the Basic Law (cf. BVerfGE 147, 364 <380 et seq. marginal no. 41>; BVerfGK 8, 401 <405>; 10, 19 <30 f.>; BVerfG, Order of the 2nd Chamber of the First Senate of 9 January 2001 - 1 BvR 1036/99 -, marginal no. 21; Order of the 3rd Chamber of the First Senate of 20 February 2008 - 1 BvR 2722/06 -; Order of the 3rd Chamber of the First Senate of 25 February 2010 - 1 BvR 230/09 -, marginal no. 19).

The groups of cases mentioned in the case-law of the Federal Constitutional Court are a non-exhaustive list of examples of a constitutionally significant violation of the duty to refer. For the question of a violation of the right to the lawful judge pursuant to Article 101.1 sentence 2 of the Basic Law by a failure to refer a case to the Court of Justice of the European Union, the starting point is not primarily the justifiability of the interpretation by the specialised courts of the substantive Union law relevant to the dispute - in this case, the GDPR - but the observance or misapprehension of the requirements of the duty to refer pursuant to the provision of Article 267.3 TFEU. 267 (3) TFEU, which determines the statutory judge in the dispute (see BVerfGE 128, 157 <188>; BVerfG, Order of the 3rd Chamber of the First Senate of 25 February 2010 - 1 BvR 230/09 -, para. 20; Order of the 2nd Chamber of the First Senate of 30 August 2010 - 1 BvR 1631/08 -, para. 48).

b) Taking these principles into account, the Local Court violated Article 101.1 sentence 2 of the Basic Law by refraining from requesting a preliminary ruling on the question to be clarified as to whether, in the case presented by the complainant of the use of an email address in violation of data protection and the sending of an unwanted email to the complainant's business email account, a claim for damages for pain and suffering by the complainant can be considered under Article 82.1 of the GDPR.

aa) The District Court should not have decided, without a reference for a preliminary ruling to the Court of Justice of the European Union, that no claim of the complainant arose from the sending of the email without his express consent under Article 82 of the GDPR because no damage had occurred.

The facts to be assessed in the main proceedings raised the question under which conditions Art. 82(1) GDPR grants a claim for monetary damages and which understanding of this provision is to be given in particular with regard to recital 146, third sentence, which requires a broad interpretation of the concept of damage in light of the case law of the Court of Justice of the European Union that fully complies with the objectives of the GDPR. Pursuant to Art. 82(1) GDPR, any person who has suffered material or non-material damage as a result of a breach of the GDPR is entitled to compensation from the controller, i.e. the natural or legal person, public authority, agency or other body which alone or jointly with others determines the purposes and means of the processing of personal data (cf. Art. 4 No. 7 GDPR).

This claim for monetary compensation has not been exhaustively clarified in the case law of the Court of Justice of the European Union, nor can it be determined directly from the GDPR in its individual requirements necessary for the assessment of the facts presented in the main proceedings. Even in the literature available to date, which arguably favours a broad understanding of the concept of damage in view of Recital 146, the details and the exact scope of the claim are still unclear (cf. Gola/Piltz, in: Gola, DSGVO, 2nd ed, 2018, Art. 82 para. 12 f.; Quaas, in: BeckOK Datenschutzrecht, 34th ed., 11/2020, Art. 82 para. 23 f.; Bergt, in: Kühling/Buchner, DSGVO BDSG, 3rd ed., 2020, Art. 82 para. 17 f.; Boehm, in: Simitis/Hornung/Spiecker gen. Döhmann, Datenschutzrecht, 1st ed., 2019, Art. 82 marginal no. 11 f.; Frenzel, in: Paal/Pauly, DSGVO BDSG, 2nd ed., 2018, Art. 82 marginal no. 10). The Local Court could also not assume a correct application of Union law that is so obvious that there would be no room for reasonable doubt (acte clair). This applies all the more since Art. 82 GDPR expressly includes non-material damage.

bb) The challenged decision shows that the District Court certainly saw the problem of interpreting Article 82(1) of the GDPR. However, it then made a constitutionally relevant error in its own interpretation of EU law by basing its rejection of the claim on a characteristic of lack of relevance that is neither directly laid down in the GDPR nor advocated by the literature or used by the Court of Justice of the European Union.

The same applies to the order of the Local Court challenged by the complainant, by which it rejected the complainant's objection to a hearing. Here, too, the district court appeals to the existence of a hitherto unclear characteristic of a minor infringement in the context of Article 82(1) of the GDPR.

cc) The answer to the legal question of how Article 82 (1) of the GDPR is to be interpreted against the background of Recital 146 in cases of sending an email without consent was relevant to the decision on the payment claim asserted by the complainant.

The decision on the reimbursement of expenses is based on § 34a.2 of the BVerfGG.
</pre>