OGH - 6Nc19/21b

OGH - 6Nc19/21b
Court:	OGH (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 15 GDPR Article 79 GDPR § 28 Austrian Act of Jucicial Jurisdiction (Jurisdiktionsnorm - JN) § 29 Austrian Data Protection Act (Datenschutzgesetz - DSG)
Decided:	03.08.2021
Published:	29.09.2021
Parties:
National Case Number/Name:	6Nc19/21b
European Case Law Identifier:	ECLI:AT:OGH0002:2021:0060NC00019.21B.0803.000
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Rechtsinformationssystem des Bundes (RIS) (in German)
Initial Contributor:	n/a

The Austrian Supreme Court held that the Austrian provision that determines which national Austrian court is locally competent to handle lawsuits for damages due to GDPR violations applies to all kinds of civil claims under Article 79 GDPR.

English Summary

Facts

An Austrian based data subject intended to file a lawsuit under Article 79 GDPR due an (alleged) violation of Article 15(3) GDPR. The Austrian law contains no general provision determining which civil court in Austria would be competent to handle such lawsuit - § 29(2) of the Austrian Data Protection Act (Datenschutzgesetz - DSG) only establishes which court is locally competent to handle claims for damages following a violation of the GDPR (see Article 82 GDPR) or the DSG.

Hence, the data subject filed a request under § 28 of the Austrian Judicial Jurisdiction Act (Jurisdiktionsnorm - JN) with the Austrian Supreme Court (OGH), asking the OGH to assign the case to the regional court of Feldkich (LG Feldkirch). § 28 JN allows for the OGH to assign a case to an Austrian civil court of its choice when it is unclear under the law, which court is locally competent to handle a case.

Holding

The OGH rejected the data subject's request and held that § 29(2) DSG does not only apply to claims for damages but for any kind of civil claim under the GDPR or the DSG. In its reasoning the OGH referred to its decision 9Ob91/19d of 23.05.2019. The OGH held, that even if that decision (only) dealt with the question of subject matter competence of Austrian courts regarding claims under the GDPR, its findings can be applied on the question of local jurisdiction as well.

Hence, the request under § 28 JN needed to be rejected, as the question of local competence can be answered by applying § 29(2) DSG per analogiam.

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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.

court
Supreme Court


Decision date
08/03/2021


Business number
6Nc19 / 21b


head
The Supreme Court, through the Senate President Hon.-Prof. Dr. Gitschthaler as chairman and the court councilors Univ.-Prof. Dr. Kodek and Dr. Nowotny as another judge in the case of the applicant C *****, represented by Thurnherr Wittwer Pfefferkorn & Partner Rechtsanwälte GmbH in Dornbirn, against the defendant W ***** Ltd, *****, Ireland, on the application for ordination of the applicant according to § 28 JN den
decision
composed:


Saying
The application, in accordance with § 28 Paragraph 1 Z 1 JN, to designate the Feldkirch Regional Court as the competent court for the claim to be brought by the applicant in this matter;
in the eventu, to designate another regional court for civil law matters as the competent court for the action to be brought by the applicant in a specific matter,
is rejected.


text
Reason:
 [1] The applicant claims that by letter dated January 21, 2021, he requested the respondent to provide information on the applicant's personal data in accordance with Art. 15 GDPR. The relevant application also contained an application for the transmission of a data copy within the meaning of Art 15 (3) GDPR. On April 15, 2021, the applicant was sent information from the respondent in which reference was made to the possibility of electronically requesting a copy of the data processed in relation to the applicant. The applicant made use of this option and on April 19, 2021 downloaded the copy of the data electronically made available by the respondent.
 [2] Since the information provided by the respondent is incomplete and does not meet the legal requirements and the data copy provided is also incomplete, the applicant now intends to enforce his claims according to Art. 15 GDPR. He has his domicile and habitual residence in Austria. The respondent is based in *****, Ireland, and, according to the information in the legal notice on its website, has no branch in Austria. The elective jurisdiction provided for in Art 79 (2) GDPR provides for the international jurisdiction of Austrian courts, but does not regulate local jurisdiction, which is why ordination is required in accordance with § 28 JN.
 [3] The request is not justified.


Legal assessment
 [4] 1. Pursuant to Art 79 (2) GDPR, the courts of the Member State in which the controller or the processor has a branch are responsible for actions against a controller or a processor within the meaning of the GDPR. In addition, Art 79 (2) GDPR provides for an optional place of jurisdiction, according to which such actions can also be brought before the courts of the member state in which the party concerned is domiciled.
 [5] 2. Pursuant to Section 29 (2) DSG, the regional court entrusted with exercising jurisdiction in civil law matters is responsible for claims for damages in the first instance and in whose district the plaintiff (applicant) has his habitual residence or seat. Complaints (applications) can also be filed with the regional court in whose district the defendant has his habitual residence or seat or a branch.
 [6] 3. The Supreme Court has already ruled in several decisions that the assertion of the right to information in accordance with Art 15 GDPR and the right to receive a data copy in accordance with Art 15 Para 3 GDPR also in court, parallel to the possibility of filing a complaint with the competent supervisory authority can be enforced (6 Ob 127 / 20z; 6 Ob 138 / 20t).
 [7] 4.1. From the fact that Article 79 (2) GDPR provides for an elective court of jurisdiction in Austria, but in contrast to Article 18 (1) EuGVVO, it does not also regulate local jurisdiction, it was partly deduced in the literature that ordination according to Article 28 JN is necessary (Leupold / Schrems in Knyrim, DatKomm Art 79 Rz 46; Klauser, legal enforcement in data protection according to the GDPR and the DSG 2018 from a civil procedural and consumer law perspective, in Nunner-Krautgasser / Garber / Klauser, legal enforcement in data protection according to the GDPR and the DSG 2018 [2019] 53 ff; see also Mayr in Rechberger / Klicka, ZPO5 JN § 28 Rz 4).
 [8] 4.2. In the well-founded decision 6 Ob 91 / 19d (= jusIT 2019/55 [Jahnel / Thiele]), the decision-making Senate has in the meantime made it clear that Section 29 (2) DSG does not only apply to claims for damages in the narrower sense, but also applies to other civil law claims according to the DSG or the DSGVO. Although this decision expressly deals only with the factual jurisdiction, the relevant considerations can also be transferred to the local jurisdiction.
 [9] 5. In summary, against the background of the "duality" of legal protection for data protection claims, § 29 Paragraph 2 DSG should be interpreted to the effect that this provision not only covers claims for damages, but also other civil law claims according to the DSG or the DSGVO.
 [10] 6. Ordination according to § 28 JN is therefore not required, so that the relevant application had to be rejected according to the ruling.


European Case Law Identifier
ECLI: AT: OGH0002: 2021: 0060NC00019.21B.0803.000