VG Düsseldorf - 29 K 7031/19

VG Düsseldorf - 29 K 7031/19
Court:	VG Düsseldorf (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 77 GDPR Article 78 GDPR § 25 DSG NRW a. F.
Decided:	11.10.2021
Published:
Parties:
National Case Number/Name:	29 K 7031/19
European Case Law Identifier:	ECLI:DE:VGD:2021:1011.29K7031.19.00
Appeal from:
Appeal to:	n/a
Original Language(s):	German
Original Source:	Justiz - Online (in German)
Initial Contributor:	Agnieszka Rapcewicz

The Administrative Court Düsseldorf held that the GDPR does not apply to proceedings concluded under the old data protection laws if no proceedings were pending when it came into force on 25 May 2018.

English Summary

Facts

The applicant complained to the DPA of the State of North Rhine-Westphalia (the LDI) about the actions of the District Court of C. The complainant worked for several decades as a civilian employee for the police authorities and intelligence services. In 2016, he was charged with tax evasion by the District Court of C. and eventually was sentenced to a suspended sentence of imprisonment. Following an appeal, the case was referred back to this Court. The proceedings there are still ongoing and are currently suspended.

The applicant argued that apparently the investigation file, which had been received by the Court, together with the indictment, had been copied in full or at least a substantial part and distributed to third parties. These parties included journalists of the T. Zeitung (Z), who had reported on the allegations against the applicant in their articles before the case was known to the public. Moreover, the day before the opening of the main hearing, the newspaper again carried an extensive report using personal data from the indictment. Further letters also showed that Z had knowledge of the contents of the criminal case file.

The plaintiff, in a letter of 15 December 2017, requested the DPA, to take measures against the District Court of C., i.e., to prohibit the Court from transferring the judicial files concerning him in whole or in part to the press authorities or to reconstruct the criminal file for that purpose.

In response, in early 2018, the DPA replied that courts are largely exempt from scrutiny by the DPA. The inadmissible disclosure of court records falls within the field of jurisdiction or justice, not administrative action. Consequently, the DPA was unable to provide assistance within the scope of its competence. The authority in its letter did not indicate to the claimant how he could appeal against this position.

One and a half years later - in September 2019 - the plaintiff filed a lawsuit requesting the enforcement of the GDPR by the defendant LDI, namely an injunction prohibiting the C. District Court from transferring all or part of the court files concerning him to the press authorities or from reconstructing the criminal file accordingly for this purpose. He sought a remedy against the supervisory authority under Article 78 of the GDPR.

Holding

The court dismissed the complaint. It found that the plaintiff is precluded from having recourse to the GDPR in connection with his letter to the DPA of 15 December 2017. The process initiated with the plaintiff's submission was completed at the time of the entry into force of the GDPR, so that the new law does not apply to it. In any case, the action for an obligation and notification would be time-barred. The plaintiff did not file a (new) complaint pursuant to Article 77 of the GDPR before filing the action, so that there is no requirement for a substantive judgement.

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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.

& # 13;
          1 fact:
2The plaintiff seeks the defendant State Commissioner for Data Protection and Freedom of Information (LDI) as the data protection supervisory authority of the State of North Rhine-Westphalia to take measures against the District Court C.
3The plaintiff worked for decades as a civil employee for police authorities and secret services. In 2016 he was charged with tax evasion by the district court C. (Az. II-0 Kls 000 / 12-0 / 16). The district court C. ended the proceedings with a condemnation sentence. The appeal to the Federal Court of Justice led to the annulment of the regional court judgment and referral back for renewed trial and decision by another criminal chamber at the regional court C. The proceedings there are still pending and are currently suspended.
4With a letter dated December 15, 2017, the plaintiff turned to the defendant LDI "because of: data protection violation (Regional Court C.)" with the request to take all measures required under data protection law. He submitted: Apparently the investigation files received by District Court C. together with the indictment in July 2016 had been completely or at least comprehensively duplicated and distributed to third parties - including journalists from the T. Zeitung (Z). These, in turn, had made the contents of the files the subject of their reporting. On July 13, 2016, the Z reported on the indictment against him, which was still completely unknown to the public at the time. Furthermore, one day before the opening of the main hearing in the Z, extensive reports were again made using personal details that were taken from the indictment. Further letters also show that Z was aware of the content of the criminal record. Due to the illegally stolen data or illegally stolen or duplicated files, the public prosecutor I. initiated an investigation, which, however, has so far remained unsuccessful.
On January 23, 2018, the LDI announced that the provisions of the State Data Protection Act of North Rhine-Westphalia, including the provisions on jurisdiction over the courts, only apply to the extent that they perform administrative tasks. As a result, the courts are largely beyond the control of the LDI. The inadmissible forwarding of court files falls under the area of jurisdiction and administration of justice, but not the area of judicial administrative matters. Consequently, it is unable to provide any further assistance within the scope of its competence. Instructions on legal remedies were not attached to the letter.
6The plaintiff filed a lawsuit on September 24, 2019, in which he seeks the enforcement of the General Data Protection Regulation by the defendant LDI, namely a ban on the full or partial transmission of the court files concerning him by the district court C. to the press or a corresponding duplication of the criminal files to this end. The reason given by the plaintiff is that he is asserting a legal remedy against a supervisory authority in accordance with Article 78 of the General Data Protection Regulation (GDPR). The enforcement of the GDPR is a mandatory task of the supervisory authority, so that there is no margin of appreciation. The defendant LDI is obliged to issue a ban on the transmission of personal data to the press or the reproduction made for this purpose against the district court C. The transmission or reproduction violates the plaintiff's right to informational self-determination. The matter at issue falls within the jurisdiction of the defendant because the complainant's data protection complaint and his legal protection goal concern the performance of administrative tasks. The publication of court decisions is the responsibility of the court administration. A data protection violation has evidently occurred because the performance of the court administration's tasks includes, in particular, safeguarding the personal rights of those involved in the proceedings, data protection and tax secrecy. The data protection violation had occurred in the area of responsibility of the district court C., other sources were excluded. The asserted claim is judged according to the factual and legal situation at the time of the oral hearing.
7With a letter dated November 4, 2019, entitled “Supervision according to Section 26, possibly in conjunction with Section 60 (1) Data Protection Act North Rhine-Westphalia (DSG NRW)”, the LDI turned to the District Court C. and asked for the presumption of duplication and surrender to submit a position to representatives of the press by the district court C.
8The President of the District Court C. announced in a letter dated December 3, 2019 that he had only performed administrative tasks in the criminal proceedings against the plaintiff in the context of public relations through press releases by the press officer of the District Court C. The press spokesman had not made the case file or parts of it available to representatives of the press. As a precaution, consultation had also been held with the presiding judge of the criminal proceedings. He also stated that the trial file or excerpts from it had not been made available to representatives of the press.
9The applicant claims
10 to oblige the defendant to impose a ban on the respective legal entity of the regional court C. from transmitting personal data of the plaintiff from the plaintiff's court files to the press, as long as these have not been read out in the main hearing, and / or the court files concerning the plaintiff in full or partially to be reproduced for this purpose, if this happens as in July 2016 to the journalists of the "T. Newspaper "and described in the letter of the plaintiff's legal representative dated December 15, 2017 in accordance with Annex K 1,
11 as an alternative,
12 to oblige the defendant to reschedule the plaintiff taking into account the legal opinion of the court.
13 The defendant,
14 dismiss the action.
The reason given by the LDI: It was not responsible for such cases during the application and processing period because there was no data protection control authority. According to the data protection law applicable at the time, she only had control over courts insofar as they performed administrative tasks. The forwarding of indictments by the panel responsible in the matter to representatives of the press does not represent an administrative task of the court. Submissions from persons who have turned to the data protection supervisory authorities with regard to data protection violations are at the time of the application as a petition procedure according to Art. 17 of the Basic Law (GG) has been viewed. The citizen's rights were thus limited to the fact that the matter had been received, factually examined and an answer to the result of the examination had been made. She had fully complied with this obligation. The now applicable DS-GVO in conjunction with the DSG NRW has only been in effect since May 25, 2018. Even on the basis of this new data protection law, the LDI does not have control competence with regard to courts, insofar as they perform judicial activities. Regardless of this, the claims asserted with the lawsuit do not exist. It is controversial whether the DS-GVO can be used to derive a right to, if necessary, specific action by the supervisory authorities in the form of a subjective public law. In any case, there is no complaint from the plaintiff within the meaning of Article 57 (1) (f) GDPR. The submission from December 2017 should not be regarded as a complaint in this sense, as the GDPR was not yet applicable at this point in time and at the time when this submission was finally processed. A claim against the LDI could at most be directed to the dutiful exercise of its discretion. The facts are neither fixed nor cleared up, nor is the LDI's discretion so narrowed that an order such as the one requested in the lawsuit is imperative. It is by no means certain that the investigation file, including the indictment, was passed on by District Court C. With her request for information to the District Court C. on November 4, 2019, she dutifully complied with her discretion. The lawsuit was interpreted as a complaint within the meaning of the GDPR. The plaintiff could have achieved this procedure without filing a lawsuit by contacting them again after the GDPR came into force.
16Due to the further details of the facts and disputes, reference is made to the content of the court files and the administrative procedures involved.
17 Reasons for the decision
18The lawsuit is unsuccessful. It is already inadmissible.
19The plaintiff, as can be seen from the claim in connection with the statement of grounds, asserts a legal remedy under Art. 78 GDPR. With the application directed against the defendant LDI, as the data protection supervisory authority responsible for the state of North Rhine-Westphalia, to impose a ban on the district court C., the plaintiff seeks the order to issue an administrative act by the supervisory authority on the basis of the GDPR, or alternatively the New decision. This request is to be pursued by way of an obligation action according to § 42 Paragraph 1, 2nd alternative Administrative Court Code (VwGO).
The sole starting point for action by the defendant may be the plaintiff's submission dated December 15, 2017, to which the LDI responded with a letter dated January 23, 2018. After that, the plaintiff no longer turned to the supervisory authority.
Regardless of the question of what claims the complainant has against the supervisory authority according to Art. 77, 57 Para. 1 lit.
22 cf. on the dispute: Administrative Court (VGH) Baden-Württemberg, judgment of 1 S 3001/19, juris Rn. 51 ff .; Higher Administrative Court Hamburg, judgment of October 7, 2019 - 5 Bf 291/17 -, juris Rn. 63 ff .; OVG Rhineland-Palatinate, judgment of October 26, 2020 - 10 A 10613/20 -, juris Rn. 31 ff .; VG Ansbach, judgment of August 8, 2019 - AN 14. K 19.00272 -, juris Rn 42 ff .; VG Wiesbaden, judgment of June 7, 2021 - 6 K 307 / 20.WI -, juris Rn. 36 ff .; VG Düsseldorf, court decision of June 23, 2021 - 29 K 7710/19 -, n.v.,
In connection with his submission of December 15, 2017, the plaintiff is denied recourse to the GDPR. The process initiated with the submission of the plaintiff was completed at the time the General Data Protection Regulation came into force, so that the new law does not apply to this. In any case, the action for obligation and notification would have a time limit. The plaintiff did not lodge a (new) complaint according to Art. 77 GDPR before filing an action, so that there is no requirement for a factual judgment.
The decisive factor when deciding on actions for an obligation and an official notification is in principle the factual and legal situation applicable at the time of the last oral hearing.
25 Cf. W.-R. Schenke / R.P. Schenke, in: Kopp / Schenke, VwGO, 27th edition 2021, § 113 Rn. 217 with further references.
A further processing of the application made under the old law of December 15, 2017 according to the Data Protection Act of North Rhine-Westphalia in the version of the announcement of June 9, 2000 is therefore not possible because it will expire on May 25, 2018 according to § 72 DSG NRW stepped. Apart from the fact that, according to the DSG NRW old version, the person concerned had no legal right to certain factual or legal findings, such as to make a complaint,
27 cf. OVG NRW, judgment of June 2, 1993 - 25 A 2307/91 -, CR 1994,117,
Accordingly, the plaintiff does not base his claim to the intervention of the supervisory authorities on the old data protection law.
The plaintiff cannot claim legal protection under Art. 78 GDPR against the notification of the LDI dated January 30, 2018. Because the General Data Protection Regulation, which came into force on May 25, 2018, does not apply to the process in connection with the entry of December 15, 2017.
According to general principles, new procedural law also regularly covers pending proceedings from the time it comes into force, which is why every party involved must expect a change in the applicable rules during the course of the proceedings.
31 Federal Administrative Court (BVerwG), judgment of March 26, 1985 - 9 C 47/84 -, juris Rn. 13, with further references.
When the General Data Protection Regulation came into force, however, the plaintiff's data protection proceedings were no longer pending.
33The provision of Section 25 (1) DSG NRW old version, which was valid at the time of the submission of December 15, 2017, regulating the right to call the state data protection officer, gave the person concerned the right to have his submission processed. This included the receipt, the factual examination and notification,
34 Upper Administrative Court (OVG) NRW, judgment of June 2, 1993 - 25 A 2307/91 -, CR 1994,117,
35 The latter, due to the lack of regulatory effect, was not an administrative act, but so-called simply sovereign action.
36VG Düsseldorf, decision of September 2, 2013 - 26 K 7148/12 -, juris Rn. 7.
The defendant fully complied with this claim in its letter of January 23, 2018, in which the plaintiff was informed of the result of the examination of his submission. With the announcement of the letter, the administrative procedure initiated by calling on the LDI was concluded. However, the General Data Protection Regulation and the current national data protection laws only came into force afterwards, namely on May 25, 2018.
38 At the time the new data protection regulations came into force, the case was not pending before the court. With regard to a procedural relationship resulting from the filing of a lawsuit, the above-mentioned general principle applies in the same way that new law regularly also covers pending proceedings from the time it comes into force.
39 See BVerwG, decision of December 6, 1982 - 9 B 3520/82 - juris Rn. 8.
40This distinguishes the present case from the case constellations on which the OVG Hamburg had to decide. There, the decision of the supervisory authority was also made on the basis of old data protection law. In both cases, however, the plaintiffs had already brought an action in 2016, i.e. well before the new law came into force.
41 Cf. OVG Hamburg, judgments of October 7, 2019 - 5 Bf 279/17 and 5 Bf 291/17 -, both juris,
As a result, the pending proceedings were covered by the new procedural law. According to the factual and legal situation at the time of the oral hearing, the GDPR, which has been in force since May 25, 2018, and the data protection provisions revised at national level were decisive for the data protection claims asserted in the legal action.
43 Cf. OVG Hamburg, judgment of October 7, 2019 - 5 Bf 291/17 -, juris Rn. 45.
In the absence of a pending lawsuit on May 25, 2018, such further processing of ongoing legal proceedings under the new law is not possible.
45 Nothing else emerges from substantive law. Neither the DS-GVO nor the DSG NRW contain transitional regulations that subject even old cases to a subsequent assessment by the supervisory authority. Such a (real) retroactive effect of the new data protection laws would have required an express order of application by the legislature.
46 Cf. BVerwG, judgment of March 26, 1985 - 9 C 47/84 -, juris marginal number 14.
47 From the general objective of the General Data Protection Regulation, to protect fundamental rights and freedoms and in particular the right to the protection of personal data,
48 Hornung / Spiecker called Döhmann, in: Simitis / Hornung / Spiecker, data protection law, insert No. 312,
49and to create uniform standards in the application and enforcement of data protection law,
50 cf. Körffer, in: Paal / Pauly, DS-GVO / BDSG, 2nd edition, Art. 55 DS-GVO Rn 1;
It cannot be inferred that the data submitted and resolved under the old law should be subject to a renewed review in accordance with the new data protection regulations. This means that the existence of the recourse procedures concluded under the old law remains unaffected by the change in law.
52 Even if the applicability of the GDPR is assumed in favor of the plaintiff, his action would be inadmissible. Because then the period of action would be missed. With the imposition of a ban on the district court C., the plaintiff seeks the adoption of an administrative act by the defendant LDI. The period of action of one month after delivery of the notification pursuant to Section 74 Paragraph 1 Clause 1, Paragraph 2 VwGO shall apply accordingly for the obligation action if the application to carry out the administrative act has been rejected. The letter dated January 23, 2018, with which the complaint was rejected - within the meaning of the GDPR as a complaint - did not contain any information on legal remedies. Therefore, according to Section 58 (2) sentence 1 VwGO, the one-year period applies. However, there was more than one and a half years between the letter of September 23, 2018 announced to the plaintiff and the commencement of the action on September 24, 2019.
53A new application for the defendant to intervene under data protection law pursuant to Art. 77 GDPR was not submitted by the plaintiff before the action was brought. For the obligation action it is recognized that its admissibility depends in principle on an unsuccessful application previously submitted in the administrative procedure for the administrative act being sued to be carried out.
54 Cf. W.-R. Schenke, in: Kopp / Schenke, VwGO, 27th edition 2021, preparatory section 40, marginal number 11.
55This admissibility requirement follows from Sections 68 (2) and 75 (1) VwGO (“application for execution”) and additionally from the principle of separation of powers, since it is initially up to the administration to deal with claims that are directed at it . In principle, the application must have been submitted prior to the filing of the obligation action and therefore includes an admission requirement.
56R. P. Schenke, in: Kopp / Schenke, VwGO, 27th edition 2021, § 42, marginal number 6.
57The plaintiff did not lodge a complaint within the meaning of the GDPR prior to filing a lawsuit. Insofar as the defendant interpreted the application as a complaint within the meaning of the GDPR and obtained an opinion from the regional court C., this cannot cure the lack of a previous application.
58 The appeal was not to be admitted because the reasons of Section 124 (2) No. 3 or No. 4 VwGO are not available (Section 124a (1) sentence 1 VwGO). The case has neither fundamental significance nor does the judgment deviate from a decision of a higher court.
59 The decision on costs follows from Section 154 (1) VwGO, the decision on provisional enforceability from Sections 708 No. 11, 711, 709 sentence 2 Code of Civil Procedure.
60 Instructions on legal remedies:
61A written appeal against this judgment can be lodged with the Administrative Court of Düsseldorf (Bastionstrasse 39, 40213 Düsseldorf or Postfach 20 08 60, 40105 Düsseldorf) within one month of the delivery of the full judgment. The appeal must describe the judgment under appeal.
The appeal can also be submitted as an electronic document in accordance with Section 55a VwGO and the Ordinance on the Technical Framework Conditions for Electronic Legal Transactions and via the special electronic authority mailbox (Electronic Legal Transactions Ordinance - ERVV).
63 The reason for the appeal must be given within two months of service of the full judgment. Unless the appeal is filed at the same time as the appeal, the reasoning is to be submitted to the Higher Administrative Court for the State of North Rhine-Westphalia (Aegidiikirchplatz 5, 48143 Münster or Postfach 6309, 48033 Münster) in writing or as an electronic document in accordance with Section 55a VwGO and the To be submitted to ERVV.
64The deadline for giving reasons can be extended by the chairman of the senate upon application made before it expires. The justification must contain a specific application as well as the reasons for the contestation to be given in detail (grounds for appeal).
65 In the appeal procedure, the parties involved must be represented by an authorized representative. This also applies to procedural acts through which the procedure is initiated. The parties involved can be represented by a lawyer or a law teacher at a state or state-recognized university of a member state of the European Union, another signatory state to the Agreement on the European Economic Area or Switzerland, who is qualified to hold judicial office. Reference is made to the additional representation options for authorities and legal entities under public law, including the associations they have formed to fulfill their public tasks (see Section 67 (4) sentence 4 VwGO and Section 5 No. 6 of the Introductory Act to the Legal Services Act - RDGEG -) . In addition, the persons and organizations named in Section 67, Paragraph 2, Clause 2, No. 3 to 7 VwGO are authorized as authorized agents under the conditions specified there.
66 The letter of appeal and the statement of reasons should be submitted in triplicate if possible. In the case of submission as an electronic document, no copies are required.
67 Resolution
68 The amount in dispute is set at 5,000 euros.
69 reasons:
70 The amount in dispute was determined in accordance with Section 52 (2) GKG.
71 Legal remedies:
72A complaint against the resolution in dispute can be lodged in writing or for the record of the clerk at the office at the Administrative Court of Düsseldorf (Bastionstrasse 39, 40213 Düsseldorf or Postfach 20 08 60, 40105 Düsseldorf), on which the Higher Administrative Court for the State of North Rhine-Westphalia in Münster will decide, if it is not remedied.
73The complaint can also be submitted as an electronic document in accordance with Section 55a VwGO and the Ordinance on the Technical Framework Conditions for Electronic Legal Transactions and via the special electronic mailbox (Electronic Legal Transactions Ordinance - ERVV) or for the record of the office; Section 129a of the Code of Civil Procedure applies accordingly.
74The appeal is only admissible if it is lodged within six months after the decision on the main issue has become final or the proceedings have otherwise been resolved; If the amount in dispute has been determined later than one month before the expiry of this period, it can still be submitted within one month after delivery or informal notification of the determination decision.
The complaint is not given if the value of the subject of the complaint does not exceed 200 euros.
76 The letter of appeal should be submitted in triplicate if possible. In the case of submission as an electronic document, no copies are required.
77If the complainant was unable to meet the deadline through no fault of his own, the court that has to decide on the complaint, if he lodges the complaint within two weeks of the removal of the obstacle and makes the facts justifying the reinstatement credible. After one year, counted from the end of the missed period, the reinstatement can no longer be requested. & # 13;