BVerwG - 6 C 7.20

BVerwG - 6 C 7.20
Court:	BVerwG (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 16 GDPR
Decided:	02.03.2022
Published:
Parties:
National Case Number/Name:	6 C 7.20
European Case Law Identifier:	ECLI:DE:BVerwG:2022:020322U6C7.20.0
Appeal from:	VGH Baden-Württemberg (Germany) 1 S 397/19
Appeal to:	Not appealed
Original Language(s):	German
Original Source:	BVerwG (in German)
Initial Contributor:	n/a

The Federal Administrative Court held that, in the context of a rectification request pursuant to Article 16 GDPR, a controller can only be obligated to process data whose accuracy can be established and proven by the data subject.

English Summary

Facts

The data subject was born in Turkey. His birth was first recorded in the civil status register in the district of Kayseri as 01.01.1956 and later corrected to 01.01.1958. When moving to Germany, which has been his country of residence ever since, in 1971, the data subject stated 01.01.1958 as his date of birth. This date was entered into controller's register of residents. In 2015, his registered date of birth was changed to 01.01.1953 after a decision of the District Court of Kayseri. Consequently, the data subject received a new Turkish passport stating this date of birth. When the data subject requested the controller to change his date of birth in its register accordingly, the controller refused due to a lack of certainty on his actual date of birth. The data subject pursued his request before the Administrative Court of Karlsruhe where he was successful. The controller appealed against that decision and won before the Higher Administrative Court of Baden-Württemberg. Therefore, the data subject appealed the decision at the Federal Administrative Court.

Holding

The Federal Administrative Court upheld the previous instance's decision, deciding that the data subject's request for rectification was unsuccessful.

First, the Court agreed that the GDPR was applicable although the data subject's request had occurred before the GDPR's entry into force.

Then, it confirmed the Administrative Court's application of Article 16 GDPR. The Administrative Court had correctly assumed that, while Article 16 GDPR was applicable, it could not be established that the data subject's birth date was indeed 01.01.1953. The Court confirmed that the right to rectification means the replacement of incorrect data with correct data. Consequently, there is no right to rectification if it cannot be established which data are correct.

The Court disagreed with the Administrative Court on the applicable law regarding the burden of proof but still came to the same conclusion that the data subject had to prove his actual date of birth. While the Administrative Court had applied national law of evidence, the Court clarified that Article 5(2) GDPR postulates a specific law of evidence based on the principle of accountability, making national law inapplicable. According to the Court, the burden of proof is generally upon the controller in the context of Article 16 GDPR because the controller has to prove that the data it holds are correct. However, this means in turn that if the controller has this burden of proof, it cannot be required to enter and further process data provided by the data subject if their accuracy cannot be ascertained. In such a case, the controller would not be able to prove the correctness of the processed data which it is legally required to do. By entering the new data, the controller would therefore be in breach of its obligation under Article 5(1)(d) GDPR and Article 5(2) GDPR.

Since the data subject could not prove his actual date of birth, the Court decided in favour of the controller.

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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.

Verdict

BVerwG 6 C 7.20

VG Karlsruhe - 25.04.2018 - AZ: VG 1 K 5594/15
VGH Mannheim - 03/10/2020 - AZ: VGH 1 S 397/19

In the administrative dispute, the 6th Senate of the Federal Administrative Court
to the oral hearing on March 2, 2022
by the presiding judge at the Federal Administrative Court Prof. Dr. Kraft, the judges at the Federal Administrative Court Dr. Möller and Hahn as well
the judges at the Federal Administrative Court Dr. Gamp and Hellman
recognized for right:

The plaintiff's appeal against the judgment of the Baden-Württemberg Administrative Court of March 10, 2020 is rejected.

The plaintiff bears the costs of the appeal proceedings.

reasons
I

1
The plaintiff requests that the entry of his date of birth in the defendant's population register be changed.

2
The plaintiff is a Turkish national born in Turkey. When he was first registered in the Kayseri District Civil Registry on September 11, 1959, his date of birth was "01.01.1956". In its judgment of June 16, 1971, the district court of Sariz declared the previous official date of birth to be invalid, determined that "01.01.1958" was the correct date and instructed the register office to enter the corrected date. The correction was made on June 28, 1971.

3
In the course of 1971, the plaintiff entered the Federal Republic of Germany and gave "01.01.1958" as the date of birth. Since then he has been resident in Germany. In response to the plaintiff's action against the Kayseri registry office, the Kayseri Regional Court ruled on January 27, 2015 that the plaintiff's registered date of birth should be corrected from "01/01/1958" to "01/01/1953". On March 16, 2015, the registry office changed the entry accordingly. On April 9, 2015, the Republic of Turkey issued the applicant with a passport valid until May 21, 2022 with the entry "01.01.1953" as the date of birth.

4
The plaintiff then applied to the defendant to also change the entry of his date of birth in her population register from "01/01/1958" to "01/01/1953". The defendant rejected this application by decision dated August 3, 2015. The Karlsruhe Regional Council rejected the objection raised in an objection notice dated November 6, 2015.

5
The plaintiff then filed a lawsuit and requested that the notices issued be annulled and that the defendant be ordered to correct his date of birth stored in the population register from "01/01/1958" to "01/01/1953". In its judgment of April 25, 2018, the administrative court ordered the defendant to correct the plaintiff's date of birth stored in the population register from "01/01/1958" to "01/01/1953", repealing the decision and the objection decision. The plaintiff is entitled to have his date of birth corrected in the defendant's population register in accordance with § 12 BMG. For the question of whether the Complainant’s date of birth entered in the population register is incorrect and needs to be corrected, the decisive factor is that January 1, 1953 was entered as the date of birth in his Turkish passport. It is the task of the registration authorities to register the people living in their area of responsibility in order to be able to determine and prove their identity and their homes. However, establishing the plaintiff's identity is only possible with difficulty if different dates of birth are entered in his identity paper and in the population register.

6
In the appeal proceedings, the plaintiff stated that his request also included the alternative request to change the year of birth from "1958" to "0000".

7
With a judgment of March 10, 2020 (NVwZ-RR 2021, 46), the court of appeal changed the judgment of the administrative court and dismissed the lawsuit. In justification, it stated: The basis for the right to correction is Art. 16 sentence 1 GDPR. This presupposes the finding that the date stored or otherwise processed by the person responsible does not objectively correspond to reality and that the date specified by the person concerned as correct actually corresponds to reality. The Court of Appeal was not convinced of this in the plaintiff's case. The correctness of the date of birth as "01.01.1953" does not follow from the entry in the plaintiff's Turkish passport. According to Section 418 (3) ZPO, this cannot provide full proof of the date of birth. A link to the information in the passport does not follow from the identification function of the population register.

8th
The courts are also not bound by the judgment of the Kayseri District Court on the basis of international treaties or national recognition regulations. Such a binding does not result from CIEC Convention No. 9, which, according to Art. 2, only concerns entries in civil status books, but not registers of the registration authorities. It also does not follow from Section 173 sentence 1 VwGO in conjunction with Section 328 ZPO and Sections 108 f. The effect of this judgment is limited to the correction of the foreign register. Any recognition only means that the obligation of the foreign authority to make the correction would be recognized, but not at the same time that the date of birth considered correct by the Turkish court would be binding for German authorities and courts. Such a connection also does not result from the current entry of the date of birth in the Turkish civil status register, from the extract from the register submitted by the plaintiff or from international agreements based on such extracts. CIEC Convention No. 16 does not go any further because the extract provided by the plaintiff was not drawn up on the multilingual form of the Convention. Since the extract from the register is not provided with a legalization or apostille, the presumption of the authenticity of the document from § 98 VwGO in conjunction with § 437 (1), § 438 (2) ZPO and the Hague Convention on the Exemption of Foreign Public Documents does not apply the legalization of October 5, 1961. Art. 5 EGBGB is also not linked to the date of birth last determined by a court in Turkey and entered there under civil status law.

9
In the absence of a connection to the date of birth "01.01.1953" last used by Turkish authorities, a decision had to be made by way of free assessment of evidence as to whether the deviating entry in the defendant's registration register ("01.01.1958") was objectively incorrect and the year of birth given by the plaintiff 1953 is objectively correct. It is possible and, in view of the year of enrollment and the submitted wedding photos, also probable that the year of birth 1958 stored by the defendant is objectively incorrect. However, it is not certain with the necessary certainty that the year of birth "1953" last claimed by the plaintiff is correct ("non liquet").

10
The decision on the burden of proof to be made in this way is to the detriment of the plaintiff. If there is a "non liquet" and if the objective correctness of the date that the person concerned requests to be stored is not certain, its storage cannot constitute a "correction" conceptually. The Union legislature has not made any specific provision on the burden of proof for Art. 16 Sentence 1 GDPR in the General Data Protection Regulation. Art. 5 (1) (d) GDPR also does not indicate that a "non liquet" with regard to the correctness of the data is unlawful for the further processing of the data that cannot be proven to be correct and that the data subject has the right to choose between the deletion or correction of this data. In the absence of EU law rules on the burden of proof, it is for the national judge to apply the provisions of its own legal order, ensuring that their application does not undermine the effectiveness of EU law. According to the applicable rules on the burden of proof of national law, the fact that facts from which a party derives favorable legal consequences cannot be proved is in principle at its expense.

11
The plaintiff's alternative request is also unfounded. He cannot derive any claim from Art. 17 GDPR because it cannot be proven that the defendant unlawfully processed the personal data relating to his birthday by using objectively incorrect data. According to the general rules on the burden of proof, the "non liquet" is also at his expense in this respect.

12
The plaintiff lodged an appeal against this judgment, which was approved by the Court of Appeal. As justification, he argues: The appeal judgment violates Art. 16 Sentence 1 GDPR, Section 2 Para. 1 BMG and Art. 3 Para. 1 GG. He, the plaintiff, is entitled to a right to correction under Art. 16 Sentence 1 GDPR. The court of appeal wrongly denied that the registration authority was bound by the information in his passport. The connection to the judgment of the Kayseri Regional Court and its assessment as well as the question of whether the taking of evidence shows the correctness of the date to be entered is irrelevant. Rather, the date of birth "01.01.1953" entered in his official identification document is decisive for a right to correction under Art. 16 sentence 1 GDPR. The statutory task of the registration authority to identify the persons residing in their area of responsibility is rendered impossible or more difficult if a different date of birth is entered on the official identification document than in the population register. The purpose of the population register does not require determining the objectively correct date of birth in the present case. In addition, according to Art. 5 EGBGB, the personal statute is determined by the law of Turkey, of which he is a national. The facts of the case have a foreign connection and the determination of the civil status facts in his passport by Turkey represents a sovereign act of a foreign state with regard to the civil status of one of its citizens, which is to be recognized according to the principle of sovereignty under international law. Finally, the burden of proof rule adopted by the court of appeal in the case of a "non liquet" violates its rights under the General Data Protection Regulation.

13

The plaintiff requests

1. Amending the judgment of the Baden-Württemberg Administrative Court of March 10, 2020, to dismiss the defendant's appeal against the judgment of the Karlsruhe Administrative Court of April 25, 2018;

2. Alternatively, amending the judgments of the Baden-Württemberg Administrative Court of March 10, 2020 and the Karlsruhe Administrative Court of April 25, 2018, the defendant, repealing the decision of August 3, 2015 and the objection decision of the Karlsruhe Regional Council of November 6, 2015 oblige you to delete the entry in your population register about your year of birth.

14

The defendant requests

reject the revision.

15
She defends the contested judgement.

II

16
The plaintiff's appeal is unfounded and must therefore be rejected (Section 144 (2) VwGO). As a result, the court of appeal dismissed the action with regard to both the main application (1.) and the auxiliary application (2.) in accordance with revisable law (Section 137 (1) VwGO).

17
1. As a result, the court of appeal correctly assumed that the claim with the main request is admissible (a)), but unfounded (b)).

18
a) The Court of Appeal rightly considered the action to be admissible with regard to the main claim. However, it incorrectly assumed that this was based on Art. 16 sentence 1 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (OJ L 119 p. 1) - General Data Protection Regulation, GDPR - supported requests by the plaintiff to correct the defendant's population register should be asserted by way of a combined action for rescission and performance. Rather, the admissible type of action for this claim is the obligation action.

19
Pursuant to Section 42 (1) VwGO, the obligation action is admissible if the order for an authority to issue a rejected or omitted administrative act is sought. It is also relevant if an action is directed to actual action by an authority, but the desired actual action by the authority is preceded by an administrative act. In these cases, the legal focus of official activity is not to be seen in the actual action as such, but in the underlying decision, which takes the form of an administrative act (BVerwG, judgments of November 28, 2007 - 6 A 2.07 - BVerwGE 130, 29 para. 13 and of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation no. 21 para. 12). This is the case, for example, if the authority makes a decision before the actual action, which is to be taken on the basis of a statutory examination program and in which the authority has to observe special procedural precautions such as the obligation to give reasons or to be heard (BVerwG, judgment of 16 . September 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation No. 21 marginal number 12). The regulatory character of the decision required for an administrative act presupposes that, according to its objective explanatory content, it is aimed at setting a legal consequence. It must create legally binding rights or obligations for the person concerned, design, change, cancel, establish or reject such a statement in a legally binding manner. A declaratory administrative act is therefore present if the result of the official application of the law is made legally binding (cf. BVerwG, judgment of 21 June 2017 - 6 C 3.16 - BVerwGE 159, 148 para. 12 with further references).

20
Based on this, the right to correction of the population register based on the provision of Art. 16 sentence 1 GDPR to be applied in accordance with the following explanations is not only directed to an actual administrative action - the change in the population register - but to a previously issued administrative act. The legal focus of the sovereign action sought is not the actual change to the entry in the population register. Rather, the focus is on the decision on this change in accordance with the test program of Art. 16 sentence 1 DSGVO, in the context of which the authority makes a statement about the correctness or incorrectness of the data in question. In this way, the authority regulates the conflict situation, which is characterized by the coincidence of the "old", already stored date, and the "new" date submitted to the authority by the applicant. The disputed legal relationship that arose as a result of the request for correction is thus subject to clarification - which serves the interest of legal certainty - and the right to correction is established as binding. The resolution of this specific conflict situation distinguishes the situation created by the request for correction from other constellations such as updating the population register ex officio or the first entry of a date in the register (cf. on these constellations, for example, OVG Koblenz, decision of January 29, 1993 - 7 A 11526/92 - juris para. 19 f.; OVG Greifswald, decision of June 21, 1999 - 1 M 63/99 - NVwZ-RR 2009, 93 <93 f.>; OVG Lüneburg, decision of April 25, 2014 - 11 ME 64/14 - juris para. 7 f. and OVG Münster, decision of May 24, 2017 - 16 E 1119/16 - juris para. 11). The determination of the correctness of the date in question associated with the decision affects the respective claimant as a natural person outside the administration in his right to informational self-determination and thus also has a direct external effect.

21
However, the decision of the court of appeal is correct for other reasons, Section 144 (4) VwGO. The action is also admissible if the basis is the obligation action as a permissible type of action. In particular, the plaintiff unsuccessfully carried out the preliminary proceedings pursuant to Section 68 (1) sentence 1 VwGO and then filed a suit within the deadline.

22
b) As a result, the Court of Appeal rightly dismissed the main claim as unfounded. It correctly used Art. 16 sentence 1 GDPR as the basis for the claim (aa)) and ultimately rightly assumed that the factual requirements for the right to correction are not met (bb)).

23
aa) The basis of the claim for the plaintiff’s request to change his year of birth in the defendant’s population register is Art. 16 sentence 1 GDPR.

24
(1) The fact that the General Data Protection Regulation came into force on May 25, 2018 and thus only during the appeal process does not prevent the application of the General Data Protection Regulation. According to the settled case law of the Federal Administrative Court, the legal situation that is decisive for the judicial decision results from the substantive law, which not only provides the factual prerequisites for an authorization basis or a claim itself, but also the answer to the question of when these prerequisites are fulfilled (BVerwG, judgments of March 31, 2004 - 8 C 5.03 - BVerwGE 120, 246 <250> and of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation No. 21 marginal number 13). The decisive factor is therefore which legal provisions apply according to their will to apply at the time the decision is made for the assessment of the claim, regardless of whether it is an action for a declaratory judgment, an action for performance, an action for rescission or an action for obligation (BVerwG, judgment of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation No. 21 marginal number 13). In the case of the service constellation at hand here, in which action is required of the authority, this will usually be the last oral hearing if the substantive law does not give any indication of a different point in time (cf. BVerwG, judgments of June 9th 2010 - 6 C 5.09 - BVerwGE 137, 113 para. 23, of December 4, 2014 - 4 C 33.13 - BVerwGE 151, 36 para. 18 and of September 16, 2020 - 6 C 10.19 paragraph 14).

25
The General Data Protection Regulation itself does not contain any indication that requests for information that were made before it came into force would still have to be decided according to the old law (cf. also ECJ, judgment of October 1, 2019 - C-673/17 [ ECLI:​EU:​C:​2019:​801] - para. 41). Rather, according to its Art. 99 (2) it claims direct unrestricted validity in all member states from May 25, 2018 (cf. BVerwG, judgment of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation No. 21 marginal number 14 ; BGH, judgment of July 12, 2018 - III ZR 183/17 - BGHZ 219, 243 para. 66). The situation is different only with regard to completed facts, on which the authority has already decided according to the old law (cf. BVerwG, judgment of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation No. 21 marginal number 14 with reference on BVerwG, judgment of March 27, 2019 - 6 C 2.18 - BVerwGE 165, 111 para :​2020:​901] - para. 31). The relevant facts here, the processing of the plaintiff's date of birth in the population register, has not yet been completed, but continues to have an effect. The Federal Registration Act in the version of the Second Act to Adapt Data Protection Law to Regulation (EU) 2016/679 and to implement Directive (EU) 2016/680 (Second Data Protection Adaptation and Implementation Act EU - 2. DSAnpUG-EU) of November 20, 2019 (Federal Law Gazette I 1626) does not indicate that requests for corrections made before the changes come into force should still be assessed according to the old legal situation, i.e. according to § 12 BMG old version.

26
(2) The material scope of the General Data Protection Regulation is open in accordance with Art. 2 GDPR. The storage of the plaintiff’s date of birth in the defendant’s population register is data processing within the meaning of Art. 2 (1) GDPR. The exceptions of Art. 2 Para. 2 GDPR do not apply. In particular, the application of the General Data Protection Regulation is not excluded under Art. 2 Para. 2 Letter a GDPR. Accordingly, the regulation does not apply to the processing of personal data in the context of an activity that does not fall within the scope of Union law. According to the case law of the Court of Justice of the European Union (hereinafter: ECJ), this exceptional provision is to be interpreted narrowly and read in conjunction with Art. 2 (2) (b) GDPR and its 16th recital. Accordingly, this regulation does not apply to the processing of personal data in connection with activities that do not fall within the scope of Union law because they concern national security or are part of the common foreign and security policy of the Union. Moreover, this exceptional reason is to be understood in the light of its predecessor regulation, to which it is partly linked. Already on Art. 3 Para. 2 first indent of Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 on the protection of natural persons with regard to the processing of personal data and on the free movement of data (OJ L 281 p. 31) - Data Protection Directive, GDPR - was recognized that this directive did not apply, among other things, to the exercise of activities that did not fall within the scope of Community law and were expressly mentioned in the standard, such as processing relating to public security, national defense or the State security (cf. ECJ, judgments of September 27, 2017 - C-73/16 [ECLI:​EU:​C:​2017:​725] - para. 37 and of July 10, 2018 - C-25 /17 [ECLI:​EU:​C:​2018:​551] - para. 38). Therefore, the mere fact that an activity is a specific activity of the state or an authority does not suffice, according to the ECJ, for the exception of Art. 2 Para. 2 Letter a GDPR. Rather, for its intervention, it is necessary that the processing of personal data is carried out by state authorities in the context of an activity aimed at safeguarding national security or an activity that can be assigned to the same category. Activities aimed at safeguarding national security include in particular those aimed at protecting the fundamental functions of the state and the fundamental interests of society (cf. ECJ, judgment of 22 June 2021 - C-439/19 [ECLI:​EU :​C:​2021:​504] - para. 62 ff.).

27
However, this is obviously not about such data processing. Rather, the keeping of the population register serves in addition to that in Section 2 (1) of the Federal Registration Act (BMG) as amended by the announcement of May 3, 2013 (Federal Law Gazette I p. 1084), last amended by Article 4 of the law of March 28, 2021 ( BGBl. I p. 591) specific obligation to identify the residents as an information basis for a large number of public bodies, as can be seen from § 2 para. 3 BMG. Irrespective of the great practical importance of the population register associated with this, it is not evident that the protection of the basic functions of the state or the interests of society or an equally important activity is at issue here. Moreover, the national legislature has also assumed the application of the General Data Protection Regulation in the area of ​​reporting, as can be seen from § 12 BMG in the currently applicable version of the Second Data Protection Adaptation and Implementation Act EU and from the explanatory memorandum to this (Bundestag printed paper 19 /4674 p. 224).

28
bb) When examining the claim of Art. 16 sentence 1 GDPR, the court of appeal correctly assumed that although the personal and material scope of application of the provision is open ((1)), it cannot be determined that the year of birth given by the plaintiff is 1953 is correct ((2)). In doing so, it assumed an appropriate concept of correctness ((a)) and, without making any legal errors, denied sufficient conviction that this prerequisite existed ((b)). The decision on the burden of proof that was then made was ultimately at the expense of the plaintiff ((c)).

29
(1) Pursuant to Art. 16 sentence 1 GDPR, the data subject has the right to demand the correction of incorrect personal data concerning them from the person responsible without delay.

30
The provision is applicable here, because the indication of the year of birth of the plaintiff is information that relates to an identified natural person, and is therefore personal data within the meaning of Art. 4 No. 1 GDPR. The plaintiff is also a data subject within the meaning of Art. 16 Sentence 1 GDPR and the defendant is responsible for the data processing in question in her population register. Responsible in this sense according to Art. 4 No. 7 GDPR is the natural or legal person, authority, institution or other body that alone or jointly with others decides on the purposes and means of processing personal data. The defendant, as the registration authority responsible for maintaining the municipal register in question (cf. § 1 BMG in conjunction with § 1 Para. 2 of the Baden-Württemberg Implementation Act for the Federal Registration Act and § 107 Para. 4 PolG BW), is therefore responsible within the meaning of the provision.

31
(2) A prerequisite for the right to correction under Art. 16 Sentence 1 GDPR is that it is aimed at replacing an incorrect date with a correct date (cf. on the right to correction under the previously applicable Reporting Law Framework Act BVerwG, judgment of September 30, 2015 - 6 C 38.14 - BVerwGE 153, 89 para. 10; see also Meents/Hinzpeter in: Taeger/Gabel, DSGVO - BDSG - TTDSG, 4th edition 2022, Art. 16 para. 15).

32
(a) The benchmark for the qualification of a date as "correct" or "incorrect" within the meaning of Art. 16 Sentence 1 GDPR is first of all the objective reality. Correct is a date that agrees with reality; it is incorrect if it does not correspond to it (also OVG Berlin-Brandenburg, decision of July 1, 2020 - 3 S 24/20 - juris para. 6; LSG Essen, judgment of July 24, 2020 - L 21 AS 195/ 19 - juris paragraph 24; Meents/Hinzpeter, in: Taeger/Gabel, DSGVO - BDSG - TTDSG, 4th edition 2022, Article 16 paragraph 8; Paal, in Paal/Pauly, General Data Protection Regulation, 3rd edition 2021, Art. 16 GDPR marginal 15; Peuker, in: Sydow, European data protection regulation, 2nd edition 2018, Art. 16 marginal 11; cf. on the right to correction under Section 20 (1) sentence 1 BDSG old version also BVerwG, decision of March 4, 2004 - 1 WB 32.03 - BVerwGE 120, 188 <190>).

33
The extent to which the respective purpose of the data processing influences the assessment of the correctness of the data can be left open here. The CJEU has decided on Article 6 Para. 1 Letter d of Directive 95/46/EC, which is essentially the same as Article 5 Para. 1 Letter d GDPR, that the correctness and completeness of personal data with regard to the purpose for which the data was collected must be assessed (ECJ, judgment of December 20, 2017 - C-434/16 [ECLI:​EU:​C:​2017:​944] - para. 53). However, this does not need to be discussed in more detail here, since the purpose of keeping the population register does not require reference points that deviate from the objective correctness to be used to determine the correctness of a registered date of birth.

34
In particular, contrary to the plaintiff's opinion, the identification function of the population register pursuant to Section 2 (1) BMG does not lead to the accuracy of characteristics identifying a person being based not on reality but on the entries in identity documents. The purposes of the population register, in particular the support function for other official areas of activity by providing the information required to fulfill the task (cf. Gamp, in: Lisken/Denninger, Handbuch des Polizeirechts, 7th ed. 2021, p. 1408 marginal number 336) is As a general rule, this is best done with data that reflects reality as accurately as possible. In view of numerous areas for which the age of the respective resident is decisive - such as the preparation of voter lists (cf. § 3 Para. 2 No. 1 BMG) or the recording of compliance with compulsory schooling - this applies in particular to a person's date of birth . A need flowing from the identification function for the deviation from the criterion of objective reality demanded by the plaintiff in favor of the information in the identification documents exists in view of the possibilities of disclosing and documenting any deviations in various documents - as is the case here with the plaintiff through the reference in his settlement permit has been issued - not.

35
Nothing else follows from § 3 Para. 1 BMG and § 23 Para. 1 Clause 1 BMG. According to Section 23 (1) sentence 1 BMG, a person who is required to register must submit a completed and signed registration form together with an identification document to the registration authority in order to fulfill the registration obligation; According to Section 3 (1) BMG, this identification document must be stored in the population register as evidence of the correctness of the stored data. The provision in § 23 Para. 1 BMG assumes that the registration authority in the situation of the first registration - also for reasons of practicability - can generally assume that the data listed in the identity document is correct, provided there are no indications to the contrary. In the context of the right to correction, however, it is a matter of deciding whether the stored date or the date specified by the respective applicant and possibly contained in (new) identity documents is correct. It cannot be inferred from Section 23 (1) BMG that the registration authority would be forced to accept the data without checking it even in cases where the correctness of the data contained in the identity document is unclear and disputed. Section 3 (1) BMG also does not state that the correctness of a date must be based on aspects other than the actual circumstances. As stated, this is also not appropriate with regard to the identification function of the population register.

36
(b) The Court of Appeal did not make factual determinations as to whether the year of birth 1958 stored in the population register is correct. It stated that there was some evidence that the date of birth stored by the defendant in the plaintiff's population register was objectively incorrect. The Complainant credibly stated that his parents had repeatedly explained to him that he was actually born earlier than 1958 and explained that he thought it possible that the change in his year of birth from 1956 to 1958 in 1971 was due to the departure to Germany and to avoid being called up for military service in Turkey. Ultimately, however, the court of appeal left open the question of the correctness of the year of birth 1958 and denied the right to correction under Art. 16 Sentence 1 GDPR on the grounds that it could in any case not be determined that the year of birth 1953, the entry of which the plaintiff desires, is correct.

37
From the point of view of the Court of Appeal, there is nothing to be said against this assumption by the Court of Appeal. In particular, the court of appeal correctly did not see itself as bound by the statement of the year of birth 1953 in the documents submitted by the plaintiff.

38
(aa) First of all, the Convention on the correction of entries in civil status books (civil status registers) of September 10, 1964 (Federal Law Gazette II 1969, 446) - CIEC Convention No. 9 - does not result in any substantive legal commitment to the indication of the year of birth in the judgment of the Kayseri District Court. According to Article 2 of the Convention, the authority of a Contracting State which has jurisdiction to decide to correct an entry in a civil register kept in its territory also has jurisdiction to order, in the same decision, the correction of the same error contained in a later entry has been adopted in the civil status register of another Contracting State and concerns the same person or their descendants. This decision is enforceable in the other state without further formality. The plaintiff cannot derive anything from this because there is no such correction order. In addition, the defendant's population register is not a civil status register. For this reason, the application of Art. 3 CIEC Convention No. 9, according to which in cases in which a decision on the correction of an entry in a civil status register has been issued by the competent authority of a contracting state, also the transfers, is out of the question of this entry in the civil status register of another Contracting State.

39
(bb) The Court of Appeal did not fail to recognize the existence of rules of evidence when forming its opinion on the question of the correctness of the date of birth "01.01.1953" and thus violated the principle of conviction of § 108 Para. 1 Sentence 1 VwGO.

40
According to the settled case law of the Federal Administrative Court, it is up to the factual court to form a conviction of the facts relevant to the decision by means of the free assessment of evidence in the procedural division of competences between the factual court and the appellate instance. The principle of free assessment of evidence laid down in § 108 para. 1 sentence 1 VwGO opens up an evaluation framework for the judge of fact. The Federal Administrative Court does not have to review the factual assessment of evidence to determine whether the weighting of individual circumstances and their overall assessment appear convincing. Accordingly, it is not already called into question by the fact that one of the parties involved wants to draw different conclusions from the available factual material than the factual court. A significant deficiency in the assessment of evidence according to Section 108 (1) sentence 1 VwGO only exists if the alleged error can be sufficiently clearly distinguished from the substantive legal subsumption, i.e. the correct application of substantive law, and the judge of fact agrees with it left the evaluation framework opened up to the determination of facts by the principle of free evaluation of evidence. Exceeding this evaluation framework can consist, for example, in non-observance of the laws of thought, legal rules of evidence or general principles of experience or in an objectively arbitrary or factual assessment that is contrary to the documents (cf. BVerwG, judgment of December 14, 2020 - 6 C 11.18 - BVerwGE 171, 59 para. 40 and resolutions of October 5, 2018 - 6 B 148.18 - juris marginal number 9 f., of July 9, 2019 - 6 B 2.18 - Buchholz 310 § 132 paragraph 2 number 2 VwGO No. 31 marginal number 22 and of 31 March 2021 - 6 B 55.20 - juris marginal note 4 f.).

41
According to the case law of the Senate, such an exceeding of the framework set by § 108 Para. 1 VwGO is a procedural defect (BVerwG, judgment of December 14, 2020 - 6 C 11.18 - BVerwGE 171, 59 para. 40 and resolutions of 5 . October 2018 - 6 B 148.18 - juris marginal number 8 and of March 31, 2021 - 6 B 55.20 - juris marginal number 5), which is only to be examined on the plaintiff's complaint (cf. Neumann/Korbmacher, in: Sodan/Ziekow , VwGO, 5th edition 2018, § 137 marginal number 176). Irrespective of this, the Court of Appeal did not disregard any statutory rules of evidence in the matter by denying a link to the plaintiff's year of birth in his passport, in the judgment of the Kayseri Regional Court and in the excerpt from the Turkish civil status register submitted.

42
A commitment to the date of birth in the plaintiff's passport does not follow from the rules on documentary evidence from § 98 VwGO in conjunction with §§ 415 ff. ZPO. For the question of the probative value of the passport, § 418 ZPO is to be used because it is neither a public document about declarations (§ 415 ZPO) nor about orders, orders or decisions (§ 417 ZPO). According to Section 418 (3) ZPO, such a document only provides full evidence for facts that the issuer has certified based on his own perception, which is not the case with the plaintiff’s date of birth.

43
There is also no violation of statutory rules of evidence if the court of appeal denied that the plaintiff's date of birth was binding in the judgment of the Kayseri Regional Court of January 27, 2015 due to the provisions on the recognition of foreign court decisions. The recognition of foreign judgments in administrative court proceedings is generally based on § 173 sentence 1 VwGO in conjunction with § 328 ZPO, which regulates those cases in which the recognition of the judgment of a foreign court is excluded. § 328 ZPO does not apply when it comes to the recognition of the judgment of a foreign court, the decision of which falls under the scope of the Act on Procedure in Family Matters and in Matters of Voluntary Jurisdiction (FamFG) under German law. Then the corresponding application of § 328 ZPO is superseded by the regulations in §§ 108 and 109 FamFG (cf. BVerwG, judgment of November 29, 2012 - 10 C 4.12 - BVerwGE 145, 153 marginal number 19). According to the findings of the Court of Appeal, the Kayseri District Court ordered the registry office to correct the plaintiff's year of birth in the civil status register there. According to Section 51 (1) sentence 1 PStG, the provisions of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction apply to legal disputes about corrections to entries in the civil status register. According to Section 108 (1) FamFG, foreign decisions - apart from decisions in matrimonial matters that are not available here and decisions according to Section 1 (2) of the Adoption Effects Act - are recognized without the need for a special procedure. However, this recognition only means that the decision basically has the effect in Germany that the decision-making state attributes to it (cf. OLG Hamm, decision of April 11, 2014 - II-2 WF 57/14 - FamRZ 2014, 1935 <1936&gt ;). However, the judgment of the Kayseri District Court only justifies the obligation of the Turkish civil registry officer to change the Turkish civil status register. This does not result in any further binding of other, for example German, authorities. Section 108 FamFG does not provide for a link to the actual assumptions of the foreign court on which the statement of legal consequences is based (cf. Dimmler, in: Keidel, FamFG, 20th edition 2020, Section 108 marginal numbers 3 and 10; on Section 16a FGG: BVerwG, Resolution of August 9, 1990 - 1 B 103.90 - Buchholz 310 § 98 VwGO No. 35 S. 10; BSG, resolution of June 16, 1994 - 13 RJ 47/93 - juris marginal note 38).

44
Article 8 of the Convention on the Issuance of Multilingual Extracts from Civil Status Registers of September 8, 1976 (Federal Law Gazette II 1998, 775) - CIEC Convention No. 16 - does not result in a commitment to the date of birth given in the submitted extract from the Turkish civil status register. According to Art. 8 sentences 2 and 3 of CIEC Convention No. 16, the multilingual extracts regulated in this Convention have the same force as the extracts issued under the domestic legislation of the state concerned - that is, here the Turkish state. They shall be accepted without legalization, authentication or equivalent formality in the territory of any State bound by this Convention. As the Court of Appeal correctly stated, the plaintiff cannot invoke this rule because the excerpt submitted does not meet the formal requirements set out in the Convention, and in particular was not prepared on the basis of the form provided (Art. 1 in conjunction with the Annex to the Convention). is.

45
Contrary to the opinion of the appeal, Art. 5 EGBGB also does not result in a commitment to the date of birth in the documents submitted by the plaintiff. According to Art. 5 Para. 1 Sentence 1 EGBGB, in the event that a person belongs to several countries, if a reference is made to the law of the country to which a person belongs, the law of that country with which the person is most closely connected shall apply is, in particular through their habitual residence or through the course of their lives. The other paragraphs of the provision regulate the same for the case of statelessness and for the reference to the law of the state of the (habitual) residence of a person. The assumption that this norm could result in a link to the judicial determination of the plaintiff’s date of birth by the Kayseri District Court or to the entry in the Turkish civil status register is misguided because, according to its wording, Art. 5 Para. 1 EGBGB only applies then , if another norm refers to the law of a country to which a person belongs. In this case, Art. 5 EGBGB, as a so-called dependent conflict-of-law norm or auxiliary conflict-of-law norm, only clarifies some doubts that arise in special constellations in connection with nationality (Art. 5 para. 1 and 2) or with the habitual residence (Art. 5 para. 3 ) can occur (cf. v. Hein, in: Munich Commentary on the Civil Code, 8th ed. 2020, EGBGB Art. 5 para. 1). However, such a reference standard that could be applied in the present case is not recognizable; in particular, the Federal Registration Act does not contain any such reference. Contrary to the plaintiff's opinion, the mere fact that there is a fact with a foreign connection is not sufficient in view of the wording and function of Art. 5 EGBGB. In addition, Art. 5 Para. 1 EGBGB has the sole purpose, in the event that a norm refers to the law of the country of nationality of a person who has several nationalities, to regulate which of these nationalities should be decisive. Such a situation does not exist here.

46
(cc) Other concerns relevant to revision law against the assessment of evidence by the Court of Appeal and the result obtained on the basis of this, that the correctness of the year of birth 1953 cannot be determined, are not recognizable and the plaintiff does not assert them either.

47
(c) Proceeding from this, the court of appeal rightly assumed that the fact that the year of birth 1953, which the plaintiff wishes to be entered, could not be proven to be correct, is at the expense of the plaintiff. The relevant burden of proof rule is not to be found in national law, but in the General Data Protection Regulation itself ((aa)). But even after this, the burden of proof lies with the plaintiff ((bb)).

48
(aa) According to the case law of the ECJ, it is - insofar as the relevant legal act of Union law does not contain any specific provisions in this regard - a matter for the national court to apply the regulations on the burden of proof of the national legal system, provided that this does not impair the effectiveness of Union law and compliance with the obligations resulting from Union law are ensured (cf. ECJ, judgments of October 3, 2013 - C-113/12 [ECLI:​EU:​C:​2013:​627] - para. 61, of July 9, 2020 - C- 86/19 [ECLI:​EU:​C:​2020:​538] - para. 44 and of December 21, 2021 - C-124/20 [ECLI:​EU:​C:​2021:​1035] - Paragraph 65; see also Opinion of the Advocate General of 20 June 2019 - C-212/18 [ECLI:​EU:​C:​2019:​520] - paragraph 47).

49
However, Article 5(2) of the General Data Protection Regulation contains a specific provision as to who bears the burden of proof for the correctness of the date to be re-entered at the request of the data subject. According to this, the person responsible for data processing is responsible for compliance with the principles of data processing contained in Art. 5 Para. 1 DSGVO and must be able to prove compliance with them ("accountability").

50
This provision not only establishes the accountability and obligation of the person responsible for data processing to provide evidence to the supervisory authority (but probably according to Hoeren, MMR 2018, 637, 638; cf. on the obligations to the supervisory authority also Herbst, in: Kühling/Buchner, GDPR - BDSG , 3rd edition 2020, Art. 5 GDPR marginal number 79; Frenzel, in: Paal/Pauly, Data Protection Basic Regulation, 3rd edition 2021 marginal number 52), but also regulates the burden of proof according to the case law of the ECJ, insofar as the compliance with the principles of Art. 5 Para. 1 GDPR in a legal dispute between the person responsible and the person concerned. The ECJ clarified this in a recent decision on a request for a preliminary ruling, which was issued in the context of a legal dispute between an internet portal and the Latvian tax administration, and stated that due to the principle of accountability enshrined in Art. 5 (2) GDPR, the data processing Those responsible must be able to prove that they comply with the principles for the processing of personal data set out in Art. 5 (1) GDPR. It follows from this that the person responsible bears the burden of proof (cf. ECJ, judgment of 24 February 2022 - C-175/20 [ECLI:​EU:​C:​2022:​124] - para. 77, 81) . According to this case law, Art. 5 Para. 2 GDPR therefore contains a burden of proof regulation for disputes in which compliance with the principles of data processing according to Art. 5 Para. 1 GDPR is in question.

51
The provision thus also determines the distribution of the burden of proof within the framework of the right to correction under Art. 16 Sentence 1 GDPR, insofar as the question of the correctness or incorrectness of the data concerned is in dispute. The right to correction serves to implement the principle of data accuracy in accordance with Art. 5 Para. 1 Letter d GDPR. According to this, personal data must be factually correct and, if necessary, up to date; every reasonable step shall be taken to ensure that personal data which are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay ("accuracy"). Insofar as the accuracy of a date is disputed in the context of a request for correction, this also raises the question of whether the person responsible for processing is fulfilling his obligation to comply with the principle of data accuracy by processing the "old" or the "new" date . As can be seen from the case law of the ECJ, the provision of Art. 5 (2) GDPR contains rules on the burden of proof for this dispute. There is therefore no room for recourse to the national rules on the burden of proof.

52
(bb) From Art. 5 (2) in conjunction with Art. 5 (1) (d) GDPR, it follows that the accuracy of the data, the processing of which the claimant is requesting with the right to correction under Art. 16 Sentence 1 GDPR, cannot be proven at the expense of the claimant. This follows from the fact that, according to these provisions, the person responsible for data processing bears the burden of proving that the data processed by him are factually correct. If he is responsible for this proof, he cannot be required to enter and further process a date given by the applicant whose accuracy cannot be determined. In such a case, he would not be able to provide the proof of the correctness of the processed data that is incumbent on him. By entering the new date, he would therefore be in breach of his obligation under Article 5(1)(d) in conjunction with Article 5(2) GDPR. This means that the person responsible can only be obliged to process such data within the scope of the right to correction, the correctness of which can be determined. If this is not the case - as here - the claimant cannot request the correction and the inability to prove the correctness of the data whose processing he requests is at his expense.

53
This interpretation of Art. 5 (2) in the context of the review of claims under Art. 16 Sentence 1 GDPR is so obvious that there is no room for reasonable doubt and a preliminary ruling procedure under Art. 267 TFEU on the interpretation of Art. 5 (2) GDPR can be omitted (cf. on the requirements ECJ, judgment of October 6, 2021 - C-561/19 [ECLI:​EU:​C:​2021:​799] - para. 32 ff.). A different interpretation, according to which the non-provability of the correctness of a date, the processing of which the claimant requests with the right to correction under Art. 16 Sentence 1 GDPR, is at the expense of the person responsible for data processing, would lead to irresolvable contradictions with the principle of data correctness from Art. 5 Para. 1 Letter d GDPR and the burden of proof of the person responsible for its compliance.

54
(cc) If the non-provability of the correctness of the year of birth 1953, as assumed by the court of appeal without any legal errors according to the above descriptions, is at the expense of the plaintiff, the plaintiff is entitled to change his date of birth in the population register of the defendant from "01/01/1958" to "01/01/1953 " according to Art. 16 sentence 1 DSGVO to be denied. As the Court of Appeal rightly assumed, the lawsuit remains unsuccessful with its main application.

55
2. With regard to the auxiliary request, the revision is to be rejected with the proviso that the action is already inadmissible in this respect. The dismissal of the action by the Court of Appeal was correct with regard to the alternative application. It can remain open whether the Administrative Court correctly assumed that the plaintiff is not entitled to the claim asserted with the auxiliary application. The decision of the court of appeal proves to be correct in this respect at least for other reasons (Section 144 (4) VwGO).

56
a) The plaintiff stated in the oral hearing that his claim also included the alternative request to change the year of birth from "1958" to "0000". If the plaintiff's request is considered reasonably, this request is not to be understood as a request for correction, but as a request for deletion. Because the entry of the sequence of digits "0000" corresponds to the procedure of the registration authorities according to Section 3.0.2 BMGVwV in conjunction with the "Data record for the registration system: uniform federal/state part (DSMeld)", Sheet 0601, in the case of missing or incomplete data and only acts as a Placeholder.

57
b) With regard to this application, the action is inadmissible because the defendant has not submitted a corresponding prior application. This applies regardless of whether an action for obligation or a general action for performance is admissible for the request for cancellation. According to the case law of the Senate, the requirement for prior official involvement applies to both types of action.

58
aa) With regard to the obligation action, it is recognized that its admissibility generally depends on the plaintiff unsuccessfully applying for the enactment of the administrative act in the previous administrative procedure, as requested by the action. This admissibility requirement results from § 68 Para. 2, § 75 sentence 1 VwGO ("application for performance") and represents an expression of the constitutional principle of the separation of powers, according to which it is initially up to the administration to deal with claims that be addressed to them. The requirement is subject to the proviso that the relevant federal law on administrative procedure does not contain any deviating regulations. According to the case law of the Senate, these principles apply accordingly to general claims for performance. If there is no legally regulated procedure in which the asserted claim is to be examined by a competent administrative authority, a need for legal protection for the action for performance may be recognized in individual cases for reasons of procedural economy, even without prior application in the administrative procedure. This applies in particular if the authority has not specifically complained about the lack of prior involvement (cf. BVerwG, judgment of November 25, 2020 - 6 C 7.19 - BVerwGE 170, 345 marginal note 36 with further references; decision of November 22, 2021 - 6 VR 4.21 - NVwZ-RR 2022, 164 para. 8 f.). For reasons of procedural economy, it may also be appropriate to waive the requirement for a prior application to the authority if the insistence on prior involvement by the administration appears to be a mere formality because the authority has clearly and unambiguously indicated that it will accept such an application will definitely reject (cf. on the procedure according to § 123 VwGO BVerwG, decision of November 22, 2021 - 6 VR 4.21 - NVwZ-RR 2022, 164 marginal note 10; Puttler, in: Sodan/Ziekow, VwGO, 5th edition 2018 , Section 123 marginal number 70; see also VG Berlin, judgment of September 24, 2020 - 19 K 69.16 - juris marginal number 83).

59
bb) The Court of Appeal did not make any factual findings regarding the existence of a pre-trial application to the defendant and the prerequisites for any exceptions to the requirement for prior official involvement. However, this does not prevent the Senate from making a final decision, because the material judgment requirements of the lawsuit are so-called procedural facts that the appeals court can determine itself (cf. BVerwG, judgment of November 28, 2018 - 6 C 2.17 - Buchholz 150 § 5 PartG No. 13 marginal number 12 and resolution of March 8, 1995 - 11 C 25.93 - NJW 1995, 2053; Kraft, in: Eyermann, VwGO, 15th edition 2019, § 137 marginal number 46; Neumann/Korbmacher, in: Sodan/Ziekow, VwGO, 5th edition 2018, § 137 marginal number 128 f.; Suerbaum, in: Posser/Wolff, BeckOK VwGO, 60th edition as of January 1st, 2022, § 137 marginal number 58). Based on the available files and the information provided by the parties involved in the oral hearing before the Senate, it is clear that the plaintiff did not deal with the defendant before the court with the alternatively asserted request ((1)) and the conditions for a waiver of the requirement of the previous Application not submitted ((2)).

60
(1) According to the available court and authority files - in particular according to the minutes of the oral hearing before the court of appeal - the plaintiff has the alternative application with the wording that his action also includes the auxiliary application to change the birth year from "1958" to "0000". , for the first time in the appeal hearing and the request pursued with him not previously asserted against the defendant. Up to this point in time, the plaintiff had only requested that the year of birth be changed to "1953" in the administrative and court proceedings. The initial decision and objection notice relate exclusively to this request.

61
The change in the year of birth to "0000" was also not included in the plaintiff's original request for correction in such a way that the auxiliary request was a "minus" included in the main request. As a rule, the correction of a date - unless other correction options are appropriate - initially requires the deletion of the "old" date. However, the mere deletion of a date - or here the replacement by a "placeholder" - without entering another (correct) information represents an aliud compared to the correction of a date. This follows from the fact that the data subject does not always assume an interest can be achieved instead of the correction of a date as minus its mere deletion. In addition, the right to rectification is based on Art. 16 Sentence 1 GDPR, while the right to erasure is based on Art. 17 GDPR (or Section 14 (1) BMG). The right to erasure exists under different factual conditions than the right to rectification and is also subject to reasons for exclusion under Section 17 (3) GDPR, for which there is no equivalent in Art. 16 GDPR.

62
(2) It is also not recognizable that the plaintiff asserted his request for deletion before the application was made in the oral appeal hearing in the court proceedings and that the defendant got involved in such a way that it was clearly recognizable that they would definitively reject such an application would.

63
In particular, in his statement of March 4, 2020, the plaintiff made no request for deletion on the legal notice of the court of appeal of February 25, 2020. "Purely as a precaution", the court of appeal referred to various opinions on the consequences that would arise if, in the context of a claim under Art. 16 sentence 1 GDPR, neither the correctness of the date stored nor the correctness of the date given by the claimant could be determined. The mere mention of a possible claim for deletion in the plaintiff's response is not a sufficient assertion of such a request and did not indicate at the time that the plaintiff had requested the defendant to replace his date of birth with "0000" could desire.

64
In its statement of March 4, 2020 on the reference by the court of appeal, the defendant also did not comment on a possible request for deletion in such a way that such a request could have been assumed to be unsuccessful. Regarding the question of the consequences of not being able to prove the correctness of the entered and newly entered date, she alone stated that she did not consider the question to be important, but she assumed that the plaintiff bore the burden of proof that the entered date of birth was incorrect and that the action would be dismissed in the case of a non liquet. In addition, the defendant also referred to the possibility of entering the sequence of digits "0000" in the case of missing or incomplete data, did not substantively admit to the plaintiff's claim for deletion.

65
It is also not apparent that the defendant made it clear in the oral hearing that an application for cancellation made by the plaintiff would be rejected in any case. The mere fact that in the appeal hearing the applications - including the auxiliary application - were made first and then the factual and legal situation was discussed does not offer any reliable evidence for the assumption that the defendant had rejected the claim with the necessary clarity Aid request submitted. In contrast, insofar as the plaintiff's representative referred to the settlement talks held during the oral appeal hearing, the subject of which were all claims, it does not follow that the defendant indicated during these talks that she would have definitively rejected a claim for cancellation. It must be possible for the defendant to comment on all aspects of a settlement proposal, without this alone being seen as a substantive admission to all the applications in question at the respective stage of the procedure (cf. on the extension of the complaint pursuant to § 91 VwGO BVerwG, decision of 20 December 2012 - 6 B 29.12 - Buchholz 310 § 91 VwGO No. 34 marginal number 4).

66
3. The decision on costs follows from Section 154 (2) VwGO.