View source for VGH München - 5 CS 20.1302

==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.

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VGH München, decision of 07.08.2020 – 5 CS 20.1302

Title:
Publication of a food regulatory audit report on the "TopfSecret" website 

Standard chains: 
VIG § 2 (1) p. 1 no. 1, § 5 (4) p. 1, § 6 (1) p. 1, p. 3, (3) p. 2, (4) p. 2 LFGB § 40 (1a) VwGO § 80a (3), § 146 (4) p. 3, § 152 (1GG)
Art. 5 (1) 
GPDR Art. 4 No. 1, No. 2, Art. 6 para. 1 sentence 1 lit. c, para. 3 sentence 1 

Guiding principles:
1. The term "non-permissible deviation" within the meaning of § 2 (1) sentence 1 no. 1 VIG covers any objective failure to comply with legal provisions. (marginal no. 15) (editorial guiding principle)

2. The result or control report on a food law audit is not subject to any obligation to state reasons because Article 39 BayVwVfG is not applicable for lack of administrative act quality. (marginal no. 16) (editorial guiding principle)

3. The applicant's claim to information under Section 2 (1) sentence 1 VIG does not depend on the consumer characteristic. (marginal no. 19) (editorial guiding principle)

4. The ground for refusal due to the abuse of rights pursuant to § 4 (4) sentence 1 VIG, which applies in particular in the case of superfluous enquiries (cf. Section 4 (4) sentence 2 VIG) or querulous requests, is not relevant for applications in the context of a third- party campaign. (marginal no. 20) (editorial guiding principle)

5. The publication of a control report on the privately operated platform "TopfSecret" is clearly not a claim to state authority. (marginal no. 27) (editorial guiding principle) 
Keywords: 
Access to information under the Consumer Information Act, transmission of the results of a company audit under food law, application via the Internet platform "Ask the State" as part of the "TopfSecret" initiative, method of providing information, correction of the information made available, determination of the amount in dispute, right to information, temporary injunction, freedom of expression, access to information, culpability, company audit, Internet platform, provision of information, Consumer Information Act 

lower court: 
VG Regensburg, decision of 04.05.2020 - RO 5 S 20.541 

Place of discovery: 
BeckRS 2020, 20595 

Tenor 
I. The order of the Administrative Court of Regensburg of 4 May 2020 is amended. The application is rejected.
 
II. The applicant shall bear the costs of the proceedings in both instances. The interested party shall bear its own extrajudicial costs. 

III. The amount in dispute shall be fixed at 5,000 euros for each of the two instances, with the first instance being amended. 

Reasons 

I. 
1 
The applicant, who runs an inn with a hotel in the defendant's urban area, objects to the disclosure of the results of a food law audit (hereinafter 'results or inspection reports') to the interested party (hereinafter also 'VIG applicant'). 
2 
In March 2019, the interested party applied to the respondent via the internet platform "Ask the State" in the context of the initiative "TopfSecret" to disclose information on the last two audits of the applicant's company under food law. In the event of an objection, he also requested the publication of the relevant inspection reports, asking for a reply in electronic form. By letter of 9 October 2019, the respondent heard the applicant on the intended disclosure of information. The hearing letter stated that the company had been inspected on 29 September 2017 and 4 March 2019. The attached inspection reports should therefore be forwarded. The applicant did not agree to the disclosure of information. 
3 
By decision of 13 March 2020, the respondent granted the request of the party invited to the hearing and announced the disclosure of the data of the last two audits under food law and the publication of the corresponding inspection reports. The information would be provided in writing ten days after serving the decision by written notification. The applicant was informed of this by letter of the same day. The letter to the applicant was accompanied by a copy of the decision addressed to the interested party and the corresponding inspection reports. 
4 
On 2 April 2020, the applicant filed an action against the decision and at the same time applied for temporary injunction. By order of 4 May 2020, the Regensburg Administrative Court ordered the temporary injunction of the action. The respondent objects to this with its appeal, in which he applies for, 
5 
setting aside the order of the Regensburg Administrative Court of 4 May 2020 and reject the applicant's application for an order that the action has  temporary injunction
6 
The applicant requests that the Court shall
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dismiss the appeal. 
8 
The interested party did not make any comments in the complaint procedure either. 
9 
For further details, reference is made to the judicial and administrative files. 

II.
10 
1. The respondent's appeal against the order of the Regensburg Administrative Court of 4 May 2020 is admissible. In particular, the statement of grounds of appeal still meets the requirements under § 146.4 sentence 3 VwGO. Although it is extremely short, it deals in particular with the weighing of interests carried out by the Administrative Court, which was ultimately decisive for the decision of the Administrative Court. 
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2. the complaint is also successful on the merits of the case. The Administrative Court wrongly ordered the temporary injunction of the action under § 80a (3), second sentence, § 80 (5), first sentence VwGO, as the applicant's action on the merits cannot succeed (see a) above) and a weighing of interests does not lead to a different result (see b) above). 
12 
(a) the action is unlikely to be well founded because the decision based on the Consumer Information Act proves to be lawful. The scope of application of the Act has been opened up and the substantive conditions for making a claim are met (aa). The interested party is entitled to make a claim; his request is not abusive (bb). Reasons for exclusion and limitation do not apply (cc). The provision of information does not violate the applicant's fundamental rights, even if the interested party should continue to use the information obtained (dd). The manner in which the information is accessed is not objectionable (ee). 
13 
aa) The asserted claim to access to information is based on the Act on the Improvement of Health- Related Consumer Information (Consumer Information Act - VIG), which is applicable for this dispute. 
14 
The Senate assumes that the information on the food law audits in dispute will be provided in the form of a record of the results in accordance with the declaration of the defendant in the administrative court proceedings (written statement of 28.4.2020) and the presentation in the appeal proceedings in the form of a record of the results, as is the case with the uniform specialist system TIZIAN in Bavaria. According to this system, the detected inadmissible deviations are described and the legal norms which are alleged to have been violated are named. 
15 
According to § 2 (1) sentence 1 no. 1 VIG, the right of access refers to all data on officially "detected non-permissible deviations" from certain (food) legal requirements. The case law of the Federal Administrative Court has clarified the interpretation of this element of the offence. The term "non-permissible deviation", which has replaced the former characteristic of "infringement", covers any objective failure to comply with legal requirements. Subjective elements such as culpability or "(personal) fault"  are irrelevant, whether there has been a breach of the provisions of administrative offences or criminal law, or whether the inadmissible discrepancies found have led to further measures by the food authority beyond the mere finding. In the interest of prompt information, the "non-permissible deviation" does not have to be established by administrative act (cf. BVerwG, U.v. 29.8.2019 - 7 C 29.17 - NJW 2020, 1155 marginal no. 30). 
16 
The designation of a legal basis with regard to the individual complaints identified as infringements within a company audit also constitutes the legal subsumption in the form of a legal- valuative classification of the actual findings during the inspection. The facts established in the results or inspection report in conjunction with the designation of the legal provision which was infringed substantiate a legal subsumption with the result of an inadmissible deviation within the meaning of § 2 (1) sentence 1 no. 1 of the German Insurance Contract Act (VIG). No justification of the subsumption is required because an inspection report does not constitute an administrative act and is therefore not subject to the obligation to state reasons under Article 39 BayVwVfG. In this respect, the statement of the established facts and the assignment to the legal provision which, in the opinion of the authority, has been infringed are sufficient for a subsumption. Whether the subsumption of the authority is correct must be clarified in another procedure, if necessary. 
17 
There are no indications that the audit reports in dispute contain anything other than information pursuant to § 2 (1) sentence 1 no. 1 VIG; in any event, the applicant does not provide any such indications. 
18 
bb) The interested party is entitled to claim, without the ground for refusal due to the abuse of rights being able to be invoked against him/her. 
19 
(1) Pursuant to § 2 (1) sentence 1 of the VIG, "everyone" is entitled to free access to the information specified therein in accordance with this Act. According to the wording and history of origin, this right is a right open to everyone and that is unconditional and does not depend on consumer characteristic (cf. BVerwG, loc.cit., marginal no. 14 ff.). The interested party, a natural person, is entitled to it without further ado. The authority has no discretionary power. Insofar as the applicant wishes to deny the person summoned the right to claim because he acts as a straw man without any self-interest, this is not to be followed. As the Bundesverwaltungsgericht (Federal Administrative Court) has pointed out following the case-law of the Bayerischer Verwaltungsgerichtshof (Bavarian Administrative Court of Justice) (U.v. 16 February 2017 - 20 BV 15.2208 - LRE 74, 122 = juris nos. 26 et seq.), the Consumer Information Act is aimed precisely at ensuring wide access to information. Individuals should not only be able to make an informed consumer decision, but at the same time to act as guardians of the general interest (BVerwG, loc.cit., marginal no. 15; cf. already BayVGH, B.v. 6.7.2015 - 20 ZB 14.977 - juris marginal no. 11). Also the question of whether the "TopfSecret" information campaign in the background enjoys the protection of freedom of expression under Article 5 (1) sentence 1 of the GG is irrelevant. The claim to access to information is based on Article 2 (1) sentence 1 no. 1 VIG and not on Article 5 (1) sentence 1 GG. 
20 
(2) The ground for refusal due to the abuse of rights under § 4(4) sentence 1 VIG, which applies in particular to superfluous enquiries (cf. Section 4(4) sentence 2 VIG) or querulous requests, is likewise not relevant in the case of applications of a third-party campaign (so also VGH BW, B.13.12.2019 - 10 p 1891/19 - marginal 29; NdsOVG, B.v. 16.1.2020 - 2 ME 707/19 - juris marginal 14; OVG NW, B.v. 16.1.2020 - 15 B 814/19 - juris marginal 31 et seq.; left open by OVG RP, B.v. 15.1.2020 - 10 B 11634/19 - juris marginal 6). In this context, it may be left open whether § 4 (4) VIG is intended to protect third parties or only serves the general interest in a functioning administration (cf. BVerwG, loc.cit., marginal no. 21 et seq.). A campaign-like re-use of information is specifically laid down in the Consumer Information Act and corresponds to its objective. This does not constitute a constitutional violation (cf. dd below), so that the interpretation of the abuse clause in § 4 (4) VIG in conformity with the constitution, as called for in the literature (Gärditz, LMuR 2020, 62/67 f.), is not necessary. A search for the "true" motive underlying the exercise of a right to which the applicant is entitled under the law finds no support in the jurisdiction on abuse of rights (cf. BVerwG, B.v. 17.07.2019 - 3 BN 2.18 - NVwZ-RR 2019, 1027 marginal no. 15 et seq. on the question of an application in abuse of rights in the review proceedings). 
21 
cc) The disclosure of the requested information is subject to grounds for exclusion and restriction pursuant to § 2 (1) sentence 2 in conjunction with § 3 VIG, which in this case do not prevent the publication of the requested information. 
22 
(1) According to § 3(2)(c) VIG, the right to information does not exist due to conflicting private interests insofar as the information requested would reveal business and trade secrets. However, by virtue of the legal evaluation of § 3 sentence 5 no. 1 VIG, any impermissible deviations identified are not to be classified from the outset as business and trade secrets in which the companies could have an interest worthy of protection (cf. BVerwG, loc.cit., marginal no. 34 with further references). In § 3 sentence 5 no. 1 VIG, the legislature weighed the conflicting interests and gave priority to the public interest in information. Irrespective of whether the deviations from the standards established in audit reports under food law can be regarded conceptually as trade and business secrets at all, the grounds for exclusion under Section 3, sentence 1, no. 2, letter (1) of the VIG do not apply to the applicant. 
23 
(2) Nor can the protection of personal data pursuant to § 3 (2)(a) VIG be invoked as a defence against the right to information. Insofar as the release of information by the respondent is to be regarded as processing of personal data within the meaning of Article 4 Nos. 1 and 2 of the GDPR, the processing would be justified under Article 6 (1)(c) and (3) GDPR (see VGH BW, loc. cit., marginal 25). In any case is the interested party  aware of any personal data of the applicant, provided that it uses them in its company name. Under Article 86 GDPR, personal data in official documents may be disclosed by the authority in order to reconcile public access to official documents with the right to protection of personal data. The requirements of this opening clause, which contains a regulatory power of the national legislator for the right of access to information (cf. BayVGH, U.v. 13 May 2019 - 4 B 18.1515 - NJW 2020, 85 marginal no. 28), the Consumer Information Act takes it into account with its graduated regulatory model that considers the mutual interests. Insofar as the applicant fears violations of data protection law by the interested party or the TopfSecret platform in the event of a subsequent further use of the information (Becker, LMuR 2020, 57/60 f.), such a violation would not be attributable to the respondent (cf.) 
24 
dd) The applicant's complaint that the disclosure of information by the authorities or any private further use of the information infringes her fundamental rights does not help the complaint to succeed either. 
25 
The disclosure of information in accordance with § 2 (1)(1) VIG, which is subject to application, does not violate the freedom of occupation under Article 12 (1) GG. It is true that access to information under the Consumer Information Act must be measured against Article 12(1) GG because it is directly aimed at the market conditions of individualised companies, can influence consumer behaviour and in this way can indirectly and de facto change the market and competitive situation to the economic disadvantage of the companies concerned (BVerwG, loc.cit., marginal no. 42 et seq. In this respect, the disclosure of information which is dependent on an application pursuant to § 4 (1) sentence 1 VIG is no different from active state information activities pursuant to § 40 (1a) LFGB, which in its targeting and effect amounts to an encroachment on freedom of occupation (BVerfG, B.v. 21.3.2018 - 1 BvF 1/13 - BVerfGE 148, 40 marginal no. 26 et seq.) 
26 
(1) Contrary to the applicant's view, there are major differences between the two types of information, which preclude the case-law of the Federal Constitutional Court on active state information behaviour, in particular the limitation of the disclosure of information to a certain period of time, from being applied without further ado to the disclosure of information dependant on an application (BVerwG, loc.cit., marginal no. 47). The active state information policy ensures that the information provided is widely acknowledged and has a greater impact on the competitive behaviour of market participants. The effects of an application-bound disclosure of information fall far short of this in terms of quality and quantity. Official information to the public ex officio under § 40 (1a) LFGB, if the conditions stated there are met, which serves as a warning to consumers to avert danger and is generally taken up immediately by the media - including online media - is an aliud to the right to access information to be asserted individually under § 2 (1) (1) VIG (see VGH BW, loc.cit., juris para. 13). § As a prerequisite for the provision of information, § 2 (1) (1) VIG does not specify any possible risks for consumers, but only the official determination of impermissible deviations from the standards mentioned therein. The encroachment on freedom of occupation associated with section § 2 (1) (1) VIG was considered justified by the Federal Administrative Court (BVerwG, loc.cit., marginal 48 et seq.; kritisch Gärditz, LMuR 2020, 62/64 et seq.)
27 
(2) A campaign-like re-use of information is specifically laid down in the Consumer Information Act and corresponds to its objectives. The mere fact that the contested control report could be published on the Internet platform "TopfSecret" does not alter the fact that in this case the granting of information to an individual is subject to an application. How the person receiving the request deals with the received operational and personal information is basically left up to him or her and is thus outside the official area of responsibility and influence. This also applies to the expected posting of the control report on the privately operated platform "TopfSecret", because such publication obviously cannot claim any state authority. The platform only publishes documents issued by the public administration and made available by private third parties; this does not make it a state publication platform itself. The fact that the requests for information are made via the website "Ask the State" does not give the impression that "TopfSecret" is a state publication platform either. 
28 
(3) The merely abstract possibility of an unlawful private re-use of the information is not sufficient, without special circumstances arising, to regard it as an equivalent of interference attributable to the defendant which would require separate justification. In so far as the applicant is concerned, in relation to the interested party, about any (future) additions or temporal limitations to the use of information, in particular with the "right to be forgotten" which also exists in business transactions (generally BVerfG, B.v. 6.11.2019 - 1 BvR 16/13 - NJW 2020, 300 marginal no. 75 et seq.), he must pursue the corresponding claims through civil law. 
29 
(4) In addition, the legislator has taken sufficient protective measures to avoid unreasonable consequences by requiring the required bodies to provide information under § 6(3) sentence 2 VIG, the obligation to rectify the situation § 6(4) VIG and the procedural involvement of the third parties concerned § 5(1) sentence 1 VIG. The rectification should be made in the same way in which the information was made accessible § 6 (4) sentence 2 VIG. In doing so, the body obliged to provide information will have to take into account that the rectification may not only be required vis-à-vis the VIG applicant, but that a public announcement is necessary if the publication of the information has gone beyond the relationship with the applicant. If an applicant has passed on the accessible information to a consumer protection organisation, for example, and this organisation has provided it with a high degree of dissemination, the body required to provide information may be obliged to ensure adequate publication of the rectification in order to maintain proportionality (cf. BVerwG, loc.cit., marginal no. 52). This may also include corrections vis-à-vis these publication platforms, as it can be assumed that these platforms will also discontinue the official rectification on their platforms. 
30 
ee) Against the background of § 6 (1) of the VIG, there are also no objections to the way in which information is accessed. The respondent and the interested party do not have to be referred to the oral or telephone access to information which the applicant considers to be preferable. There are no indications that the applicant is claiming that the authority is overburdened under § 4 (3) no. 4 VIG. Therefore, it is not clear whether an undertaking concerned can invoke this ground for exclusion. 
31 
b) Since, according to all of the above, the decision proves to be lawful in an examination going beyond a mere summary examination, the weighing of the conflicting interests is no longer relevant to the decision; the impact assessment must rather be based on the statutory evaluation of § 5 (4) VIG. The anticipation of the main proceedings criticised by the applicant (see OVG Hamburg, B.v. 14.10.2019 - 5 Bs 149/19 - ZLR 2019, 866 = juris marginal no. 19 et seq.) is based on the normative structure of the Consumer Information Act. In § 2 (1) sentence 1 no. 1 VIG. The legislature decided, without infringing higher-ranking law, to generally give the citizens' interest in information a higher priority than the interest of the business concerned in keeping information on food law complaints confidential (cf. BVerwG, loc.cit., marginal no. 13). In the absence special circumstances, the basic legal decision for immediate enforcement under § 80 (2) sentence 1 no. 3 VwGO in conjunction with § 5 (4) sentence 1 VIG therefore remains in force, and it can only be overcome in the event of successful recourse to emergency legal protection pursuant to § 5 (4) sentences 2 and 3 VIG if there are doubts about the legality of the disclosure of information. 
32 
3. The decision on costs follows from § 154(1) of the VwGO. Since the interested party not represented by a lawyer did not file an application and thus did not expose itself to any cost risk, it is equitable for the interested party to bear any extrajudicial costs itself (see § 154 (3) and § 162 (3) VwGO). 
33 
4. The determination of the amount in dispute is based on § 47 (1), § 53(2) no. 2, § 52(2) GKG. In contrast to the Administrative Court, the Senate refrains from reducing the amount in dispute in line with no. 1.5 of the Catalogue of Amounts in Litigation for Administrative Jurisdiction 2013. As explained above, the reciprocal requests are associated with an anticipation of the principal matter. Information once provided cannot be retrieved; conversely, the information requested by the party summoned would largely lose its relevance if the urgent application or appeal were successful due to the time required for proceedings on the merits (see NdsOVG, loc. cit., marginal no. 19). The Senate therefore makes use of its power under § 63.3 sentence 1 no. 2 of the Basic Law to change the first-instance determination of the amount in dispute ex officio. 
34 
5. This decision is unappealable (§ 152(1) VwGO). 

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