View source for VGH München - 4 CS 21.2254

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|Court_Abbrevation=VGH München
|Court_With_Country=VGH München (Germany)

|Case_Number_Name=4 CS 21.2254
|ECLI=

|Original_Source_Name_1=gesetze-bayern.de
|Original_Source_Link_1=https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-2022-N-4459?hl=true
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE

|Date_Decided=07.03.2022
|Date_Published=
|Year=2022

|GDPR_Article_1=Article 4 GDPR
|GDPR_Article_Link_1=Article 4 GDPR
|GDPR_Article_2=Article 5(1) GDPR
|GDPR_Article_Link_2=Article 5 GDPR#1
|GDPR_Article_3=Article 6 GDPR
|GDPR_Article_Link_3=Article 6 GDPR
|GDPR_Article_4=Article 21(1) GDPR
|GDPR_Article_Link_4=Article 21 GDPR#1
|GDPR_Article_5=Article 32 GDPR
|GDPR_Article_Link_5=Article 32 GDPR

|National_Law_Name_1=Article 24(4) GO (Gemeindeordnung) Bavaria
|National_Law_Link_1=https://www.gesetze-bayern.de/Content/Document/BayGO-24

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|Appeal_From_Body=VG Bayreuth
|Appeal_From_Case_Number_Name=B 4 S 21.693
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The Higher Administrative Court of Bavaria held that a municipal water provider was allowed to install a remotely readable wireless water meter in a residential property according to a national law provision based on [[Article 6 GDPR#2|Article 6(2) GDPR]] and [[Article 6 GDPR#1e|Article 6(1)(e) GDPR]].

== English Summary ==

=== Facts ===
The controller is a municipal water provider. Its data subjects are private persons living on a property that has two residential units. This includes a water meter that records the consumption of both residential units.

A letter from the controller of February 2021 contained the note that with the next change of the electronic water meter it was planned to install a water meter that is remotely readable and runs with a wireless function. The controller set the data subjects a deadline of two weeks to make an objection if they did not want the water meter to be remotely readable. The controller made clear that in that case, the supply of several residential units by the water meter would not be given. The data subjects made an objection and did not allow the employee of the controller access the water meter. On 20 April 2021, the data subjects also objected according to Art. 21(1) GDPR.

On 12 May 2021, the controller obliged the data subjects by a notice, among other things, to let the employees of the controller access the water meter.

On 9 June 2021, the data subjects again did not grant access to the employee of the controller.

On 11 June 2021, they filed an appeal against the notice from 12 May 2021 with the Administrative Court Bayreuth  VG Bayreuth. The data subjects also requested the VG Bayreuth to grant a preliminary injunction. 

According to the data subjects, the collection of the data would not be necessary for running the water supply. They argued that the data processed was personal data as it was possible to know who for example is not at home with additional knowledge and other data. 

The controller on the other hand argued that there was no possibility to assign the consumption of water to individual persons. Therefore, the controller was of the opinion that it was not a matter of personal data. Hence, there was also no possibility to make an objection regarding the installation of a water meter that is remotely readable.

On 15 July 2021, the controller rejected the objection of the data subjects they had made according to Article 21(1) GDPR.

On 4 August 2021, the VG Bayreuth rejected the appeal of the data subjects. It held that it is not a matter of personal data.

=== Holding ===
The Higher Administrative Court of Bavaria (VGH) rejected the injunction on the basis that, while the data concerned may constitue personal data, the controller had a legal basis for installing and running the water meters. It held that the necessary legal basis for installing and running a water meter that is remotely readable and has wireless function is given in Article 24(4) Gemeindeordnung (GO), a national law that specifies Article 6(1)(e) GDPR in accordance with Article 6(2) GDPR for processing that is necessary in public interest.

The court agreed with the data subjects that the consumption quantities recorded in an electronic (radio) water meter constitute personal data of the residents or other users of the property in question if and to the extent that conclusions can be drawn about the individual consumption behaviour of individual persons. According to the court, this is the case with the operation of a water meter at least if the recorded consumption data relate to a flat or other building unit used by a single person. However, even in the case of joint use by several persons, if water consumption is continuously recorded by an electronic meter, it may be possible to draw conclusions about the consumption habits of individuals with only a little additional knowledge. Accordingly, at least in certain case constellations, the collection, storage and electronic reading or transmission of the water consumption of the connected properties constitutes a processing of personal data within the meaning of Article 4(2) GDPR. 

Moreover, the court held that the principle of data minimisation (Article 5(1)(c) GDPR) had been respected by the controller. 

According to the court, the right to object (Art 21(1) GDPR) remains untouched by Article 24(4) GO, meaning that the data subject may object to the processing unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject. 

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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>
Title:
Legal protection against a toleration order from the municipal water supplier, fulfillment of a deadline-specific obligation, legal authorization to install water meters with radio function, recording of water consumption as processing of personal data, justification of possible interventions in informational self-determination, right of objection under Union law and state law, health effects of remotely readable water meters
chains of standards:
GG Art. 1 Para. 1
GG Art. 2 Para. 1, Para. 2 Sentence 1
GG Art. 3 Para. 1
GG Art. 13 Para. 7
GDPR Art. 4
GDPR Art. 5 Para. 1
GDPR Art. 6 Para. 1, Para. 3, Para. 4
DSGVO Art. 21 Para. 1
GDPR Art. 32
GO Art. 24 Para. 1, Para. 3
GO paragraph 4
GO Art. 57 Para. 2
WHAT § 13 para. 1
WHAT § 19 para. 1
WHAT § 19a paragraph 1
WHAT § 24 para. 1
WHAT § 25 para. 1
BayVwVfG Art. 43 Para. 2
Motto:
The installation and operation of remotely readable water meters with activated radio function by municipal water suppliers are not opposed by data protection law or health protection reasons.
tags:
Legal protection against a toleration order from the municipal water supplier, fulfillment of a deadline-specific obligation, legal authorization to install water meters with radio function, recording of water consumption as processing of personal data, justification of possible interventions in informational self-determination, right of objection under Union law and state law, health effects of remotely readable water meters
Lower court:
VG Bayreuth, decision of August 4th, 2021 - B 4 S 21.693
Source:
BeckRS 2022, 4459


tenor

I. The complaint is rejected.

II. The applicants bear the costs of the complaints procedure.

III. The amount in dispute is set at EUR 2,500.

reasons

1
The applicants are seeking provisional legal protection against the obligation imposed on them by the administrative decision to give the opponent the opportunity to exchange the existing analogue water meter for an electronic water meter with a radio module by granting access to their property.

2
The applicants are co-owners of a house with two residential units, which they live in with their two children and the parents of applicant 1. The water meter installed there records the total consumption of the property.

3
The respondent, a municipal special-purpose association, operates a public water supply facility and has issued a water tax statute (WAS) for this purpose. At the beginning of February 2021, he pointed out in a circular that the installation of electronic water meters with radio modules was planned as part of the regular replacement; The use of the remote reading function can be objected to within a period of two weeks, provided the water meter does not supply several residential units.

4
The applicant and the owner of the other apartment then declared their lack of consent to the installation and commissioning of an electronic water meter with remote reading and denied an employee of the respondent access. In a letter dated April 20, 2021, the applicants also expressly raised an objection under Art. 21 (1) GDPR and expressed concerns about compliance with data protection law and the proportionality of the installation of the devices; Also, the building they live in is not a separate unit, so that the data can be related to individuals and families at any time, given that there are currently only six residents.

5
In a decision dated May 12, 2021, the respondent then obliged the applicants and the owner of the other apartment to grant a representative of the respondent on June 9, 2021 at 10 a.m. to check and, if necessary, replace the previous water meter, access to it and to enter it to tolerate their property, their residential building and their living quarters to the required extent (No. 1); to this extent, immediate execution was ordered (No. 2). Furthermore, in the event of non-compliance with the obligation to tolerate under No. 1, a fine of 150 euros was threatened (No. 3). The costs of the procedure were imposed on the applicants and the other owner (No. 4); a fee of EUR 80 and expenses of EUR 5.66 were charged (No. 5). The justification stated, among other things, stated that the water meter's calibration period expired at the end of 2020, so that it had to be replaced. The respondent can determine the type of water meter; the property owners have no right of choice or right of objection in this respect. Mechanical water meters have not been installed since early 2021. There are no legal requirements for a right to object. The toleration order was declared immediately enforceable in the public interest, since the enforcement of calibration law by the calibration supervisory authorities had been suspended until June 30, 2021 due to the COVID-19 pandemic, but there was a risk of fines and regulatory measures after that; furthermore, according to case law, billing for consumption fees based on an uncalibrated water meter is illegal.

6
The applicants again denied the respondent’s employees access on the scheduled date of June 9, 2021 and on June 11, 2021, they filed an action with the administrative court against the decision of May 12, 2021 and filed an application for the suspensive effect to be restored. There is no interest in immediate execution, since the billing purpose can also be achieved by installing a calibrated analogue water meter. The device to be used is not certified by the Federal Office for Information Security. The collection of water temperature and outside temperature as well as the permanent recording of numerous other alarm codes are not necessary for the proper operation of the water supply. There are also health concerns about the installation of building technology with pulsed radiation, which also reaches living spaces. The toleration order is unlawful because it was issued without deciding on the objection under Art. 21 GDPR. The right of objection according to Art. 24 Para. 4 GO is only excluded for apartment buildings with a collective water meter; such was not given in the present case. The toleration order is an encroachment on the fundamental right to informational self-determination. The number of residential units is not decisive. It is not sufficient for a sufficient anonymization of the data, since no third persons lived in the house, but a family community of generations. The type of data collection is not covered by the purpose of the statutory authorization, and this also violates higher-ranking law due to its vagueness. The collection of history profiles is illegal. The cost regulation contained in the contested decision is unlawful because contradictions under the General Data Protection Regulation are free of charge.

7
The respondent opposed the urgent application and argued that an individual allocation of water consumption to individual persons was not possible under any circumstances, since six people lived in two residential units on the property. Harmful effects on the residents are not to be expected, especially since the water meters are usually installed in the basement or in the house connection room. In the absence of assignment of the data to be collected to a specific residential unit, there is no personal reference to the data, so that there is no right to object to the use of the radio function. Irrespective of the household with the applicant's parents, the house objectively has several residential units.

8th
In a letter dated July 15, 2021, the respondent rejected the applicant’s objection pursuant to Art. 21 (1) GDPR.

9
With a decision of August 4, 2021, the administrative court rejected the application under Section 80 (5) VwGO. Insofar as he refers to the order for immediate enforcement of No. 1 of the notice, he is not permissible, since the regulation contained therein pursuant to Art. 43 Para. 2 BayVwVfG has expired due to the passage of time. With regard to Nos. 3 to 5 of the decision, the application is admissible, since the action for annulment has no suspensive effect in this respect. However, the application was unsuccessful in substance, since the action, after a summary examination of the factual and legal situation, had no prospect of success. By the end of the deadline on June 9, 2021, the enforcement requirements for No. 3 of the contested decision would have been met; Obstacles to enforcement are not apparent. Nos. 4 and 5 of the decision are also not illegal after a summary examination; they were based on the provisions of the Costs Act and the Respondent's statutes on the collection of administrative costs. There is no freedom of charge according to Art. 12 Para. 5 Sentence 1 GDPR, since the contested decision is not a decision on an objection according to Art. 21 Para. 1 GDPR. The charging of costs is also not excluded according to Art. 16 para. 5 CartA. According to this, costs would not be charged that would not have arisen if the matter had been handled correctly by the authority, in particular costs resulting from illegal administrative action. This is not the case here, since No. 1 of the notice was lawful until it was settled due to the passage of time. The legal basis for the obligation is Section 25 (1) i. In conjunction with Section 13 (1), Section 19 (1), Section 19a (1) WAS, Article 24 (3), (4) GO, Article 22 (2) KommZG. The decision is formally lawful. The fact that the objection raised by the applicants pursuant to Art. 21 (1) GDPR was not decided before the decision was issued does not justify a lack of hearing because the applicants have a right of objection under Art. 21 para. 1 GDPR with regard to the installation of a water meter with an activated radio module, since no personal data within the meaning of Art. 4 No. 1 GDPR would be processed if they were present. The data to be processed by the water meter to be installed lacks reference to an identifiable natural person, since it is intended to be used for both condominium units like the water meter currently installed. It is not possible to determine who caused a specific water withdrawal. The obligation to allow access to the property to the extent necessary to check and, if necessary, replace the water meter was also substantively legitimate. An exclusion of the obligation under § 13 WAS does not result from the fact that in the event of an exchange it was intended to use an electronic water meter with a radio module. The applicants would have to tolerate such a water meter, since the respondent had made use of the legal authorization with § 19a WAS to use electronic water meters with and without a radio module. According to Art. 24 Para. 4 Sentence 6 GO, it was not necessary to use a meter without using the radio function. This does not follow from the applicants' contradiction either, since several units in the property supplied have a common water meter. Art. 24 para. 4 sentence 7 GO is to be interpreted in such a way that it is sufficient for the exclusion of the right of objection if at least one other apartment is also supplied by the same electronic water meter, since then typically no personal data according to Art. 4 No. 1 DSGVO are available. Several units are not excluded here because the property is occupied by a total of six people, the applicants, their children and the applicant's parents. The number of people living in a property and the use of the property cannot be decisive in determining when there are several units, since a connection between individually identified or identifiable natural persons and the information specifically processed by the water meter cannot be established . The obligation in No. 1 of the contested decision is not based on an error of discretion. Due to the lack of reference to a specific or identifiable person, there is no processing of personal information, so that a violation of the right to informational self-determination can be ruled out. A violation of the right to physical integrity is also not evident because of the low signal strength of 10 milliwatts and the short transmission time of 0.01 seconds.

10
The applicants are appealing against this decision. You apply accordingly,

11
repealing the decision of the Bayreuth Administrative Court of August 4, 2021 to restore or order the suspensive effect of the action of June 11, 2021 against the defendant's injunction of May 12, 2021.

12
The respondent requests

13
to dismiss the complaint.

14
For further details, reference is made to the court and authority files.

16
I. The admissible complaint, which the Senate examines on the basis of the reasons presented in a timely manner (Section 146 (4) sentences 1 and 6 VwGO), is unsuccessful. The administrative court rightly rejected the application under Section 80 (5) VwGO for the restoration or order of the suspensive effect of the lawsuit.

17
1. The applicants submit that No. 1 of the order still has effects despite the deadline having passed, since they would have to pay a fine if they did not comply with the obligation to grant access; a repeat order can also be issued at any time. The order to allow the analog meter to be replaced by a digital meter was illegal. It is already questionable whether this order is covered by Section 25 WAS; the mere reference to § 19a WAS is not sufficient in this respect. If correctly interpreted, Section 25 WAS only refers to violations under Section 24 (1) Nos. 1 to 4 WAS, but not to the type of measuring device, which enables correct recording in both analogue and digital form. The discretion was exercised incorrectly here, too, because no one would be harmed or disadvantaged if the admissibility of a water meter with radio function was first clarified in main proceedings. In a letter dated May 31, 2021, the applicants explained why they did not consider low-intensity electromagnetic radiation to be harmless and that they were not willing to accept avoidable intermittent radiation in residential areas. The biological mechanisms in the case of long-term exposure to pulsed electromagnetic radiation are more complex than those presented by the respondent. The objection to the installation of the radio function is justified, since the basis of authorization in Art. 24 (4) sentences 2 to 7 GO is not compatible with higher-ranking law. They do not set a lower limit for collective water meters, e.g. B. of ten people, as they exist in the collection of geodata in the form of population cadastres. It is unequal treatment if the right to object ultimately depends on the type of building, regardless of the number of residents. The mere structural separation of residential units, regardless of their use, is not a material reason that eliminates the reference to persons; in any case, the existence of a residential unit with a granny flat is not sufficient for this. If interpreted in accordance with the constitution, a rebuttable presumption must be assumed, according to which there is a right to deactivate the radio function in buildings with several residential units that are occupied by a small number of people. In a small community it can be determined without any special effort who z. B. is absent from school or work, so that the individual water consumption can be determined in a certain period or at a certain point in time. Because of the invoices to be created, the respondent would also regularly have the names and residential addresses for the respective meter numbers. In combination with other data, e.g. B. the telecommunications and Internet providers, gas and electricity consumption or movement, navigation, reporting and health apps can be used to determine who is present in the house. The use of continuously sparking digital water meters is not necessary for the purpose claimed and thus runs counter to the principle of data economy. Unlike smart meters for gas and electricity, wireless water meters are not certified by the Federal Office for Information Security; it is therefore not clear whether the general standards with regard to the encryption of the transmission are being observed. Overall, the interest of the applicants in deferring prevails. In its judgment of January 5, 2021, the Swiss Federal Supreme Court also ruled that the use of water meters with a radio function interfered with fundamental rights and required technical adjustments to the devices, particularly with regard to the continuous transmission function.

18
2. This submission by the applicants is not suitable for calling into question the correctness of the first-instance decision.

19
a) However, the administrative court's assumption that the urgent application is already inadmissible with regard to No. 1 of the notice because the order made there to grant a representative of the respondent access to the water meter at a specific date and to enter it does not appear to be entirely unequivocal of the property, according to Art. 43 Para. 2 BayVwVfG is settled by the passage of time. Due to its clear wording, the said decree was to be understood in such a way that the obligation to act and tolerate imposed on the applicants only had to be fulfilled once on June 9, 2021 at 10 a.m. and not also in any later attempts to replace a water meter. However, the impossibility of achieving the purpose resulting from the expiry of the deadline did not necessarily make the order obsolete. In the opinion of the Federal Administrative Court, a requirement or prohibition that has become irrelevant due to the passage of time can continue to have adverse legal effects for the person concerned if it forms the basis for enforcement measures that can still be reversed, for example in the form of a penalty payment (U. v. 20.6.2013 - 8 C 17.12 - juris para. 19) or for a cost notice (Bv 25.11.2021 - 6 B 7.21 - juris para. 7). If one follows this legal opinion, the order in No. 1 of the notification of May 12, 2021, which was declared immediately enforceable, has not yet been completely resolved, so that the application under Section 80 (5) VwGO is also permissible in this respect.

20
b) In the summary examination of the prospects of success of the pending action for annulment to be made hereafter, the administrative court correctly came to the conclusion that the applicants, by ordering an employee of the respondent to be granted access to their property, in order to allow him to check and replace the previous water meter to enable, are not violated in their rights (§ 113 para. 1 sentence 1 VwGO).

21
aa) The legal basis of the contested decision is the provision of Section 25 (1) of the statutes for the public water supply facility (water tax statute - WAS) of the respondent dated November 21, 2019, which is based on Art. 22 (2) KommZG, Art. 24 GO, which conforms to the official model statute. According to this, the respondent can issue orders for the individual case in order to fulfill the obligations under these statutes. As can already be seen from its wording, which is formulated in the manner of a general clause, contrary to the submissions of the applicants, this norm of authorization not only aims at the violations subject to fines mentioned in Section 24 (1) Nos. 1 to 4 WAS, but at all types of breaches of duty (cf. BayVGH, BV 8.3.2019 - 4 CE 18.2597 - NVwZ-RR 2019, 833 para. 9).

22
The statutory obligations of the affiliated property owners include the obligation standardized in Section 13 (1) sentence 1 WAS and based on Art Verification of compliance with the Articles of Association is required. In the absence of consent, the permitted entry into rooms belonging to a dwelling constitutes an encroachment on fundamental rights within the meaning of Article 13(7) of the Basic Law. However, this is justified because the monitoring and maintenance of the public drinking water supply facility operated for reasons of health protection (§ 37 IfSG), for which connection and use are compulsory (§ 5 WAS), serves in the sense of preventive protection to prevent a situation from occurring which would pose an urgent danger to public safety (cf. BVerfG, Uv 13.2.1964 - BvL 17/61 et al. - BVerfGE 17, 232/251 f.; LT-Drs. 17/19804 p. 2).

23
The water meters installed on the property or in the buildings after the main shut-off device (§ 3 WAS) are also part of the public water supply system subject to the right of access. The respondent is responsible for their installation, technical monitoring and replacement, whereby he can determine the type, number, size and installation location (§ 19 Para. 1 Sentence 2 WAS). The installation and maintenance work required in this context is only possible if his representatives are granted access to the rooms in which the devices are located or are to be installed. From § 19 paragraph 1 sentence 2 i. In conjunction with Section 13 (1) Sentence 1 WAS, the property owner has a corresponding obligation to act and tolerate, which can be enforced by means of individual orders under Section 25 WAS.

24
bb) The obligation imposed on the applicants to grant access to their water meter for the purpose of checking and replacing was not unlawful because the respondent's declared purpose was to install an electronic water meter with a radio module in accordance with Section 19a WAS. This was not an inadmissible encroachment on the applicant's fundamental rights or ordinary legal positions.

25
The possibility opened up with Section 19a Paragraph 1 WAS of using and operating electronic water meters with or without a radio module is based on the special statutory authorization in Article 24 Paragraph 4 Clause 1 GO, which was granted on the occasion of the new version of the Bavarian Data Protection Act (Gv 15.5.2018 , GVBl p. 230) was included in the municipal code in order to create a legal basis for the associated encroachments on fundamental rights (LT-Drs. 17/19628 p. 56). If a municipal statute maker makes use of this regulation option, he is also bound by the following provisions of Art. 24 (4) sentences 2 to 7 GO, which restrict the use of the data obtained in this way and give the fee debtors and property owners a right of objection under certain circumstances against the use of the radio function.

26
The use of electronic water meters with radio function, which is only permitted under strict conditions by the legislature, does not violate higher-ranking law. The continuous operation of such measuring devices does not constitute an inadmissible encroachment on the right to informational self-determination (1) nor does it pose a health risk for the residents according to the current state of knowledge (2).

27
(1) However, the consumption quantities recorded in an electronic (wireless) water meter represent personal data of the residents or other users of the property in question, if and to the extent that conclusions can be drawn from them about the individual consumption behavior of individual persons. In this respect, it is sufficient according to Art. 4 No. 1 GDPR that a specific natural person can be identified directly or indirectly, in particular by means of assignment to an identifier such as a name, an identification number, location data or a special identity-defining feature (cf. also BVerwG, Uv 27.11 .2014 - 7 C 20.12 - BVerwGE 151, 1 para. 41 with further references). This is the case with the operation of a water meter at least when the recorded consumption data relate to an apartment or other building unit that is used by a single person. But even when shared by several people, if the water consumption is continuously recorded by an electronic meter, conclusions can be drawn about the consumption habits of individuals with little additional knowledge (cf. Swiss Federal Court, Uv 5.1.2021 - 1C_273/2020 - EuGRZ 2021, 228 juris para. 36).

28
According to this, at least in certain case constellations, the recording, storage and electronic reading or transmission of the water consumption of the connected properties is a processing of personal data within the meaning of Art. 4 No. 2 DSGVO. If no consent has been given (Art. 4 No. 11 GDPR), this is only lawful according to Art. 6 Para. 1 Sentence 1 Letter e GDPR if it is necessary for the performance of a task in the public interest. The Bavarian legislature has created the legal basis required for this in accordance with Art. 6 Para. 3 Sentence 1 Letter b GDPR with the special regulation contained in Art. 24 Para. 4 Sentence 1 GO for the use and operation of such water meters (cf. LT-Drs. 17 /19628 p. 56). Contrary to what the applicants have argued, this statutory authorization, which only covers the water supply facilities with compulsory connection and use mentioned in Para. 1 No. 2, satisfies both the Union legal requirements of Art. 6 Para. 1 Sentence 1 Letter e GDPR and the constitutional requirements to interventions in the according to Art. 2 Para. 1 i. V. m. Art. 1 para. 1 GG protected right to informational self-determination.

29
(a) The legal intervention associated with the processing of personal data under certain circumstances serves the performance of a task in the public interest and thus pursues a legitimate purpose. The supply of drinking water is a public service obligation (Art. 83 Para. 1 BV; Art. 57 Para. 2 Sentence 1 GO; Section 50 Para. 1 WHG), which can be performed through municipal cooperation. With the operation of water meters, the water supply facilities operated for reasons of public welfare (Art. 24 Para. 1 No. 2 GO) fulfill their requirements from § 18 Para. 1 and 2, § 35 AVBWasserV (Vv 20.6.1980, BGBl I p. 750 ) the following obligation to determine the amount of water consumed by customers using functioning measuring devices.

30
The facility providers have the sole right to determine the type of water meter by virtue of federal law (cf. BGH, U.v. 21.4.2010 - VIII ZR 97/09 - NJW-RR 2010, 1162 juris marginal number 11). They are not prevented from using electronic consumption recording devices because they do not require certification by the Federal Office for Information Security. Irrespective of this, the water suppliers are responsible for compliance with the general safety requirements according to Art. 5 Para. 1 Letter f, Art. 32 GDPR. Therefore, before using electronic (radio) water meters, you must make sure with the device manufacturer that the stored and transmitted data are adequately protected against access by unauthorized third parties by appropriate technical and organizational measures (LT-Drs. 17/19804 p. 2) .

31
The switch from analog water meters that can only be read on site to digital devices that can be read remotely, with which other information such as water flow or water temperature can be electronically recorded, stored and transmitted in addition to water consumption, is suitable for the efficient and resource-saving fulfillment of the public supply task. In particular, it serves to reduce the personnel costs for an exact determination of consumption and to identify technical defects that can lead to leaks in the pipe network or to dangers for drinking water hygiene earlier and more precisely (cf. LT-Drs. 17/19804 p. 2; Garlic, CommP BY 2017, 317/318).

32
(b) In order to achieve these goals, the use of electronic water meters with a radio module is necessary, as there is no other measuring method that is equally suitable but uses less data. The processing of personal data made possible with the remotely readable devices does not go beyond what is required in terms of its legally permissible scope and in this respect corresponds to the requirement of data economy or data minimization (Article 5 (1) (c) GDPR). According to Art. 24 Para. 4 GO, the data obtained with the help of such water meters are subject to specific earmarkings, which supersede the general purpose change permits on the basis of Art. 6 Para. 4 DSGVO (LT-Drs. 17/19628 p. 56). According to Art. 24 Para. 4 Sentence 2 GO, only data that is required to fulfill the mandatory task of water supply and to guarantee the operational safety and hygiene of the entire water supply facility may be stored and processed in an electronic water meter. According to Art. 24 Para. 4 Sentence 3 GO, the stored data may only be read out and used for periodic billing or interim billing of water consumption (No. 1) and on a case-by-case basis, insofar as this is necessary in individual cases to avert dangers to the proper operation of the water supply facility and to Clarification of disruptions in the water supply network is required (No. 2). The latter enables the quick localization of leaks or pipe bursts through the temporary use of the devices outside of normal operation (cf. Götz, KommP BY 2018, 249/251); the providers of public water supply thus fulfill their obligation to keep water losses in their facilities low (§ 50 Para. 3 Clause 2 WHG). The use of the annual consumption values for the calculation and determination of the fees for the use of a wastewater disposal facility, which is also permitted in Art. 24 para. 4 sentence 4 GO, is always mandatory when the wastewater fees are calculated according to a fresh water standard and therefore constitutes an obligation pursuant to Art. 6 Para. 4 GDPR. In contrast to the case decided by the Swiss Federal Court (EuGRZ 2021, 228 juris para. 52), it is already guaranteed by operation of law that for the collection, storage and use of the personal data in any case there is a sufficiently weighty reason.

33
(c) The processing of consumption data by an electronic water meter with radio module is not such a serious legal encroachment that the interest of the public water supplier in the use of these multifunctional devices would have to take second place in the necessary overall assessment. From the point of view of the fundamental right to the inviolability of the home (Article 13 of the Basic Law), the use of remotely readable meters can even be seen as a particularly gentle way of recording consumption data, since this makes it unnecessary to enter private rooms. The officials of the utility company responsible for reading out the measured values, who are subject to data secrecy (Art. 11 BayDSG), do not receive any direct insight into the residential and living conditions of the subscribers when they visit the facility area with radio receivers, but only obtain factual information about meter readings and flow rates. Even if they are able to identify a specific person as the sole consumer due to externally recognizable accompanying circumstances, this does not normally constitute a far-reaching impairment of the right to informational self-determination. In view of the many possible uses of tap water within a household or business premises, the mere knowledge of the periods of time and the amount of water used by a single person does not generally allow any reliable conclusions to be drawn about specific behavioral habits. Insofar as this is exceptionally the case due to special circumstances, the data subject has the right of objection under Art. 24 Para. 4 GO, which remains unaffected by Art. 24 Para Obliged to refrain from data processing (cf. LT-Drs. 17/19804 p. 2; LT-Drs. 17/19628 p. 56).

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(d) The reasonableness of the use of an electronic water meter with radio module does not depend from a fundamental rights point of view on the existence or even on the scope of the specific right of objection regulated in Art. 24 Para. 4 Sentence 5 to 7 GO, which the draft law on Art. 24 Para. 4 GO was added later (LT-Drs. 17/20500).

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According to the above-mentioned provisions, those who owe the fee, the owner and the authorized user of the supplied object can, independently of one another, object in writing within an exclusion period of two weeks after receiving notification of the planned use of a water meter with radio function (Sentence 5), with the result that such a meter may not be used (sentence 6), whereby this does not apply if several units have a common water meter in a supplied object (sentence 7). The last-mentioned provision, which omits the right to object, is based on the typical assumption that no personal data would be processed if a water meter were used jointly (LT-Drs. 17/21815), since the measured consumption of several house parties usually does not require additional special knowledge , which the water supplier basically does not have, can no longer be assigned to specific persons (BayLfD, 30th activity report 2020, 6.2.3.2.). The fact that the number of (independent) "units" in the serviced property and not the number of residents is used as a distinguishing criterion can be justified with a view to the principle of equality (Art. 3 Para. 1 GG) with the fact that the structural conditions usually exist more permanently than the personal usage conditions and can also be determined more clearly.

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However, with the regulation made in Art. 24 Para. 4 Sentence 5 to 7 GO, possible infringements of fundamental rights through the use of remotely readable water meters are not completely ruled out, simply because this right of objection under state law expressly only exists when such devices are installed for the first time (cf. LT- Drs. 17/20500 p. 1 f.). Subsequent buyers and users of the residential unit in question must therefore continue to accept the operation of an existing device with radio function, even if the meter only records their consumption, if they cannot successfully invoke the right of objection under Union law under Article 21 (1) GDPR . However, for the reasons set out above, this obligation to tolerate based on the legal authorization of Article 24 (4) sentence 1 GO does not constitute a serious or even unreasonable encroachment on fundamental rights. Contrary to the opinion of the applicants, an expanded interpretation of the right to deactivate the radio function standardized in Art. 24 Para shared water meter for several residential units recorded the consumption of only a small number of people.

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(2) The use of electronic water meters with an activated radio function also does not result in any impermissible risks to human health pursuant to Article 2(2) sentence 1 of the Basic Law.

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For the assessment of possible health effects of the electromagnetic radiation emitted by remotely readable water meters, in the absence of special studies, only the scientific knowledge gained for mobile phones can be used, whereby it must be taken into account that the radiated power of a mobile phone is many times the radiated power of a typical wireless water meter (LT- Drs. 18/7406 p. 5; Calculation example at Thimet in Thimet [ed.], Municipal tax and local law in Bavaria, Part IV, Art. 9, 4.4.1). The field strength actually affecting people is again much lower in comparison, because mobile phones are used close to the head, while wireless water meters are usually attached to the central house water supply line in a basement. Since the radiated power emanating from a transmitter, the z. B. reaches the skin surface of a person, decreases almost quadratically with the distance, unless there is also a shielding by walls, the biological exposure dose actually remaining for the residents of a house becomes so small that it can no longer be represented mathematically in a meaningful way (cf. LT-Drs. 18/7406 p. 5; Thimet, loc.

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Accordingly, health concerns about the use of water meters with radio function cannot be justified from the point of view of so-called electromagnetic hypersensitivity or electrosensitivity cited by the applicants. As can be seen from a summary of the results of the German Mobile Telecommunications Research Program published by the Federal Office for Radiation Protection, non-thermal biological effects at low intensities of high-frequency fields have not yet been proven. The conclusion of the numerous studies carried out is that a causal connection between electromagnetic fields and the complaints of electrosensitive people can be ruled out with a high degree of probability; This assessment is shared by the World Health Organization and is in line with a current risk assessment by the European-level Scientific Committee on Emerging and Newly Identified Health Risks from 2015 (https://www.bfs.de/DE/themen/emf /hff/effekt/hff-discussed/hff-discussed.html). It is not apparent that these scientifically based findings are now outdated and the applicants do not substantiate them.

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cc) Since there are no legal objections to the use of electronic water meters with radio function, the respondent was allowed to issue the contested decision on the basis of the statutory powers of Section 25 (1) WAS. In view of his previous fundamental decision not to install any more mechanical water meters in the supply area from January 1, 2021, he was also not obliged to the applicants to refrain from the intended conversion for a transitional period until the final conclusion of the main proceedings. Since the order for immediate enforcement, which is justified in detail, is also not objectionable, the appeal cannot be successful overall.

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II. The decision on costs follows from Section 154 (2) VwGO, the decision on the amount in dispute from Section 47, Section 53 (2) No. 2, Section 52 (2) GKG i. V. m. No. 1.5 of the catalog of values in dispute.

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This decision is final (§ 152 Para. 1 VwGO).
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