BVerwG - 10 C 4.20

BVerwG - 10 C 4.20
Court:	BVerwG (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 23(1)(e) GDPR Article 23(1)(j) GDPR § 32c (1) AO § 32e AO
Decided:	25.02.2022
Published:
Parties:
National Case Number/Name:	10 C 4.20
European Case Law Identifier:	ECLI:DE:BVerwG:2022:250222U10C4.20.0
Appeal from:	VG Köln (Germany) 13 K 5152/15
Appeal to:	Appealed - Overturned OVG Münster (Germany) 15 A 29/17
Original Language(s):	German
Original Source:	BVerwG (in German)
Initial Contributor:	n/a

The German Federal Administrative Court (BVerwG) held that the possible Union or Member State law restriction to data subjects' rights and information obligations under Article 23(1)(j) GDPR encompasses the enforcement of civil claims by public authorities.

English Summary

Facts

In June 2015, an insolvency administrator requested tax information of an insolvency debtor from a tax office. They did so in order to examine insolvency claims, invoking the Freedom of Information Act of the State of North Rhine-Westphalia. The tax office rejected the application with reference to the obligation of tax secrecy. The insolvency administrator successfully challenged the rejection before the lower administrative courts, which was in turn challenged by the tax office.

In the meantime, the General Tax Code (Abgabenordnung - AO) was amended due to the entry into force of the GDPR. In particular, the AO now contains various grounds for exclusion of existing claims for access to information under the Freedom of Information Acts and the GDPR.

Due to the questions of EU law raised by the case with regard to Article 23(1)(e) GDPR and Article 23(1)(j) GDPR, the BVerwG had suspended the proceedings and made a reference for a preliminary ruling to the CJEU. The CJEU (Case C-620/19) declared that it had no jurisdiction in view of the fact that the present case concerns legal entities to which the GDPR does not apply.

After the proceedings resumed, the tax office claimed that § 32e and § 32c (1) AO would constitute a restriction on the requirement to provide access to information to the insolvency administrator. § 32e AO would amount to a ''Rechtsgrundverweisung''. This means that since the insolvency administrator is not the data subject, the conditions for the right to access under Article 15 GDPR are not met, and § 32c (1) AO would constitute a permissible restriction on the right to information within the scope of the GDPR, as provided for by Article 23 GDPR.

Holding

The BVerwG held that the insolvency administrator had no right to access of information of data from tax authorities. The court came to the conclusion with a ''Rechtsfolgenverweisung'': § 32e AO extends the restrictions on the right to information provided for in Sections § 32a to § 32d AO under Article 15 GDPR to claims for access to information arising from the freedom of information laws of the Federal Republic of Germany or the Länder by means of a reference to the legal consequences. Also a data subject's right to information under Article 15 GDPR does not exist vis-à-vis a tax authority, insofar as the provision would interfere with the tax authority's assertion, exercise or defense of civil law claims within the meaning of Article 23(1)(j) GDPR.

The BVerwG decided that Article 23(1)(j) GDPR, which enables national provisions that restrict rights of data subjects or information obligations if these provisions help to enforce civil claims, also covers the enforcement of civil claims by public authorities. This is also confirmed by the objective of Article 23(1)(j) GDPR to guarantee the enforcement of civil law claims, which suggests that the provision is an opening clause also in favor of public authorities. The special provisions that may exist in national law on information and disclosure obligations for the purpose of determining evidence should remain unaffected by the provisions of data protection law.

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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 10 C 4.20

VG Cologne - 01.12.2016 - AZ: VG 13 K 5152/15
OVG Münster - 14.09.2017 - AZ: OVG 15 A 29/17

In the administrative dispute, the 10th Senate of the Federal Administrative Court
to the oral hearing on February 25, 2022
through
the Vice President of the Federal Administrative Court Prof. Dr. Korbmacher and the judges at the Federal Administrative Court Dr. Schemmer, Dr. Gunther,
dr Loeffelbein and Dr. Woeckel
recognized for right:

The judgment of the Higher Administrative Court for the State of North Rhine-Westphalia of September 14, 2017 and the judgment of the Cologne Administrative Court of December 1, 2016 are amended.

The charges get dismissed.

The plaintiff bears the costs of the proceedings.

reasons
I

1
The plaintiff, an appointed insolvency administrator for the assets of J. UG, requests tax-relevant information about the insolvency debtor from the responsible tax office in order to examine insolvency avoidance claims.

2
In June 2015, the plaintiff, citing the Freedom of Information Act of the State of North Rhine-Westphalia, applied for information about the threat of enforcement measures by the tax office for the assertion of tax arrears and the subsequent payments made by the insolvency debtor. The tax office rejected the application, pointing out that the insolvency debtor was not released from the obligation to maintain tax secrecy.

3
The lawsuit filed against this was largely successful before the administrative court. The appeal of the defendant was rejected by the Higher Administrative Court in a judgment dated September 14, 2017. The right to access information is neither superseded by area-specific insolvency or tax regulations nor are there any reasons for exclusion. Although the information in dispute falls within the scope of tax secrecy, it does not require secrecy from the insolvency administrator. The authority to dispose of the tax data was transferred to the insolvency administrator as part of the insolvency proceedings, so that he himself could release the tax office from observing tax secrecy.

4
The defendant has appealed.

5
During the revision process, the tax code was also changed in connection with the entry into force of the General Data Protection Regulation. In particular, this now contains various grounds for exclusion for existing claims to information access under the Freedom of Information Act and the General Data Protection Regulation (GDPR). Because of the EU law questions raised in this respect regarding Art. 23 (1) (e) and (j) GDPR, the Senate suspended the proceedings and submitted a request for a preliminary ruling to the Court of Justice of the European Union. The Court of Justice (Az. C-620/19) has declared itself not competent, with a view to the fact that this is information about legal persons to which the General Data Protection Regulation does not apply.

6
After the progress of the appeal proceedings, the defendant submits: The provisions of § 32e and § 32c Para. 1 No. 2 AO conflict with the plaintiff's right to access information. § 32e AO is a reference to a legal basis. Therefore, if a third party requests information, the personal requirements according to Art. 15 GDPR would not be met. Even if one does not assume a legal basis reference, the claim is excluded according to § 32c Para. 1 No. 2 AO. The access to information adversely affects the defendant as the legal entity of the tax office in the defense against possible claims to avoid insolvency. Section 32c (1) No. 2 AO is a permissible limitation of the right to information covered by Art. 23 (1) GDPR within the scope of the General Data Protection Regulation.

7

The defendant requests

the judgment of the Higher Administrative Court for the State of North Rhine-Westphalia of September 14, 2017 and the judgment of the Cologne Administrative Court of December 1, 2016, to the extent that the action has been upheld, and to dismiss the action in its entirety.

8th

The plaintiff requests

reject the revision.

9
He defends the judgment under appeal. He also explains: Contrary to the defendant's opinion, the insolvency administrator is not a third party within the meaning of the data protection regulations and the tax code, but acts as a party ex officio as a natural person in the insolvency proceedings in the place of the insolvency debtor.

10
The representative of the federal interest at the Federal Administrative Court supports the appeal of the defendant and explains the reasoning: The legislature deliberately created area-specific restrictions on the right to information in order to not better, but also no worse off than other debtors or creditors. As far as the persons concerned i. p.d. Art. 15 GDPR according to § 32c Para. 1 No. 2 AO no information may be given, there is also no access to information according to the information freedom laws of the federal and state governments.

II

11
The admissible revision of the defendant is justified. The judgment of the Higher Administrative Court violates revisable law (Section 137 (1) No. 1 VwGO) and is also not correct for other reasons (Section 144 (4) VwGO), so that the action must be dismissed. The judgment of the Higher Administrative Court violates § 32e, § 32c Paragraph 1 No. 2 AO that came into force during the appeal proceedings, which the court of appeal would have to use as a basis if it were to decide now.

12
1. The access to information to the state financial authorities results from § 4 para. 1 of the law on freedom of access to information for the state of North Rhine-Westphalia (North Rhine-Westphalia Freedom of Information Act - IFG NRW) of November 27, 2001 (GV. NRW. S . 806), which gives every natural person the right to access the official information available from the state authorities and other bodies in accordance with the law. The North Rhine-Westphalia Freedom of Information Act does not contain any restrictions or exclusions for the financial administration.

13
The question dealt with in the administrative proceedings and in the lower courts, whether the insolvency administrator's right to information is opposed by tax secrecy according to § 30 AO, was decided by the 7th Senate of the Federal Administrative Court with judgments of April 26, 2018 - 7 C 3.16, 7 C 4.16, 7 C 5.16 and 7 C 6.16 - (DStR 2018, 2441) negated. The insolvency administrator's authority to administer and dispose of according to Section 80 (1) InsO extends to information that is used to examine insolvency claims. The insolvency administrator can dispose of all the secrets of the insolvency debtor that are relevant to the insolvency challenge. Tax secrecy is not violated if such information is made available to the insolvency administrator; nothing else applies to him in this respect than to the taxable insolvency debtor himself. According to the legal situation applicable at the time the lower courts made the decision, the tax offices in North Rhine-Westphalia were generally obliged to provide information to the insolvency administrator pursuant to Section 4 (1) IFG NRW.

14
2. However, Section 32e, Section 32c Para. 1 No. 2 AO now conflict with the right to access information. Both provisions were inserted by Art. 17 No. 11 of the law of July 17, 2017 (Federal Law Gazette I p. 2541) and came into force on May 25, 2018 in accordance with Art. 31 (4) of this law. § 32e AO explains Art. 12 to 15 GDPR i. V. m. §§ 32a to 32d AO for applicable accordingly, insofar as the person concerned or a third party has a right to information access to the tax authority under the freedom of information laws of the federal or state governments.

15
a) The legislative competence of the federal legislature to enact Section 32e, Section 32c (1) No. 2 AO follows from Article 108 (5) sentence 2 of the Basic Law, insofar as claims against state authorities are concerned - as is the case here. According to this, the procedure to be used by the state financial authorities and, in the cases of paragraph 4 sentence 2, by the municipalities (associations of municipalities) can be regulated by federal law with the consent of the Bundesrat. This includes the regulation or non-regulation of the right to inspect procedural files, even after the conclusion of the individual procedure, provided that no transition to court proceedings has taken place (cf. F. Kirchhof, in: Dürig/Herzog/Scholz, Commentary on the Basic Law, as of July 2021 , Volume V, Art. 84 para. 95 ff.; Krumm, DB 2017, 2182 <2188>). The process-independent information access rights modified by § 32e AO according to the federal and state freedom of information laws are not regulations of the administrative procedure (cf. BVerwG, decision of October 15, 2007 - 7 B 9.07 - Buchholz 451.09 IHKG No. 20 marginal number 9, on Article 84(1) of the Basic Law; Schoch, IFG, 2nd edition 2016, introductory note 63). However, the authority to regulate the inspection of procedural files, which is included in the legislative competence of the federal government for the administrative procedure of the state financial authorities, would remain incomplete in an improper manner if it did not also extend to a regulation of the request for access to information from procedural files of the state based on general information access claims under state law tax authorities. Otherwise it would not be possible for the federal legislature to regulate a concept of the accessibility or confidentiality of process-related information that it considers sensible or even necessary by means of a conclusive regulation, also in relation to the state legislatures. In this respect, the uniformity of the financial administration intended by Art. 108 (5) sentence 2 GG would be missed.

16
b) Contrary to the opinion of the defendant, an interpretation of § 32e sentence 1 AO as a reference to a legal basis is ruled out. It would result in the corresponding application of Art. 12 to 15 GDPR i. In conjunction with §§ 32a to 32d AO for information claims by third parties in the absence of a position as a data subject would always lead to an exclusion of claims and would therefore come to nothing.

17
§ 32e AO does not replace the claims from the information freedom laws of the federal and state governments, it only modifies them. This follows from the wording of the norm, which presupposes the existence of such a claim and only regulates the limits of the claim on the legal consequences side. The right to access information therefore continues to follow from § 4 Para. 1 IFG NRW. The requirements of the claim and any restrictions that may go further than those referred to in § 32e sentence 1 AO result from the relevant Freedom of Information Act. The tax procedural provisions of the Fiscal Code do not apply instead, but in addition to those of the Freedom of Information Act and the General Data Protection Regulation (BVerwG, decision of October 28, 2019 - 10 B 21.19 - Buchholz 404 IFG No. 35 marginal number 7). Section 32e AO extends the restrictions on the right to information from Art. 15 GDPR provided for in Sections 32a to 32d AO both for the data subject and for third parties by means of reference to legal consequences to information claims resulting from the freedom of information laws of the federal or state governments ( Federal Administrative Court, judgment of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 General Data Protection Regulation No. 21 marginal number 31).

18
The defendant and the representative of the federal interest at the Federal Administrative Court are therefore not successful with their argument that the plaintiff’s request for information does not meet the personal requirements of Art. 15 GDPR and the claim is therefore excluded. It is true that the plaintiff is not the person affected by the data processing i. p.d. Art. 15 GDPR and cannot assert the data protection right to information of the directly affected insolvency debtor according to Art. 15 Para. 1 GDPR as insolvency administrator in its own name. Because the data protection position as a data subject is, as a highly personal right of the debtor, not part of the insolvency estate and is not transferred to the administrative and disposal rights of the insolvency administrator in accordance with Section 80 (1) InsO (BVerwG, judgment of September 16, 2020 - 6 C 10.19 - Buchholz 403.1 . Data protection regulation no. 21 marginal number 16 et seq. and decision of 4 July 2019 - 7 C 31.17 - NVwZ-RR 2019, 1015 marginal number 13). For the modified according to § 32e AO information access claim from § 4 Abs. 1 IFG NRW the position as a data subject is not a prerequisite. The plaintiff remains entitled to claim according to § 4 para. 1 IFG NRW, without affected person i. p.d. Art. 15 Para. 1 GDPR. Because § 32e AO is only linked to the factually given right to access information, but not to the factual requirements of the data protection right to information according to Art. 15 DSGVO.

19
c) According to § 32c Para. 1 No. 2 AO, which has been declared applicable by § 32e AO, the data subject has no right to information under Art Defense of civil claims or civil claims asserted against him in defense i. p.d. Art. 23 para. 1 letter j DSGVO would affect; The tax authority's obligation to provide information under civil law remains unaffected.

20
Art. 23 GDPR contains a catalog of opening clauses that give the federal and state legislators the power to restrict, among other things, the rights of data subjects and the obligations of the person responsible under Art. 12 to 22 GDPR for the reasons listed there. Section 32c AO contains area-specific restrictions on the data subject’s right to information from Art. 15 GDPR on the basis of Art. 23 (1) GDPR. § 32c paragraph 1 no. 2 AO refers to the opening clause of Art. 23 paragraph 1 letter j GDPR. According to this, the rights of data subjects under the General Data Protection Regulation can be restricted in order to ensure the enforcement of civil claims. The explanatory memorandum to the law (BT-Drs. 18/12611 p. 88) also refers to Art. 23 Para important economic or financial interest of the Union or of a Member State, such as in the monetary, budgetary and fiscal areas.

21
§ 32c Para. 1 No. 2 AO aims to correct the "insolvency administrator-friendly" case law of the administrative courts on information access requests under the federal and state freedom of information laws, as was also expressed here in the decisions of the lower courts. According to this, the insolvency administrator’s powers of administration and disposal pursuant to Section 80 (1) InsO also extend to information covered by tax secrecy, which is intended to serve to examine claims for avoidance of insolvency pursuant to Sections 129 et seq. InsO against the tax authorities. As a consequence of this case law, the insolvency administrators could demand access to the tax authorities of the insolvency debtors from the tax authorities, through which they were regularly put in a position to examine insolvency avoidance claims against the tax authorities. In relation to other creditors of the insolvency debtor, on the other hand, the insolvency administrator is limited to claims for information under civil law, which Section 32c Paragraph 1 No. 2 AO expressly leaves unaffected. However, according to the settled case law of the Federal Court of Justice, civil law claims for information depend on the fact that an insolvency avoidance claim has been established in principle and that it is only a matter of determining the type and scope of the claim in more detail (cf. BGH, judgments of August 13, 2009 - IX ZR 58/06 - World Cup 2009, 1942 para. 7 with further information and dated February 14, 2019 - IX ZR 149/16 - BGHZ 221, 100 para. 29). As long as a return obligation has not been established, the insolvency administrator must therefore contact the insolvency debtor for all the information required. The insolvency administrator can therefore only claim information from other creditors at a much later stage of the proceedings; § 32c Paragraph 1 No. 2 AO should rule out the resulting worsening of the position of the tax authorities (BVerwG, decision of 4 July 2019 - 7 C 31.17 - NVwZ-RR 2019, 1015 marginal number 19 with further information).

22
d) The limitation of claims according to § 32e i. In connection with Section 32 c Paragraph 1 No. 2 AO, Art. 23 GDPR provides a sufficient basis under Union law. It is true that there is no obligation under Union law to interpret national norms in conformity with Union law even outside its scope of application. In the present case, however, this obligation results from national law. The intention of the legislature to have uniform regulations in tax proceedings regardless of the legal form of the person concerned (cf. Section 2a (3) and (5) AO; Bundestag printed paper 18/12611 p. 76) results in the obligation to have a uniform one interpretation in accordance with Union law. There are no indications that the regulatory objective of creating uniform procedural rules for all those affected is limited to taxes determined by Union law. A split interpretation of the new regulations in the tax code for matters subject to Union law on the one hand and matters not subject to it on the other hand is ruled out (BVerwG, decision of 4 July 2019 - 7 C 31.17 - NVwZ-RR 2019, 1015 para. 14 ff. with reference to BT-Drs. 18/12611 p. 76). In those cases in which the tax code provides for the corresponding application of the provisions of the General Data Protection Regulation with regard to the extension to legal entities pursuant to Section 2a (5) No. 2 AO and the information access claims pursuant to Section 32e Clause 1 AO, this is the legal consequence intended by the legislature the equal treatment of the facts in question with the cases in which the General Data Protection Regulation applies directly. The legislature, aware that it extended the General Data Protection Regulation beyond its direct scope of application to purely national situations, did not make any corresponding differentiations.

23
aa) After the negative decision of the Court of Justice of the European Union (ECJ), the Senate has the opening clause of Art. 23 Para C:​2020:​1011] - to interpret yourself.

24
(1) Art. 23 (1) (j) GDPR does not preclude a national regulation that provides for restrictions on the rights of data subjects and information obligations in the interest of the enforcement of claims under civil law by authorities. The wording as well as the sense and purpose of Art. 23 Para. 1 Letter j GDPR indicate that restrictions in the interests of authorities are possible on the basis of the regulation. The history of its origin and the systematics do not argue against it.

25
The wording of Art. 23 Para. 1 Letter j GDPR is aimed at the "enforcement of civil law claims" and thus at the protection of those involved in civil proceedings, without distinguishing between private law subjects and legal persons under public law. A legal entity under public law can also be a party to civil proceedings. In the wording of Art. 23 (1) GDPR and in the relevant 73rd recital, there is nothing to suggest that civil lawsuits in which authorities are involved as plaintiffs or defendants should be excluded from the scope of this provision. Even if civil law claims are mostly asserted between private individuals for private interests, there is no apparent reason why the Union legislature would have wanted to treat civil law proceedings in which public authorities are parties as parties differently (as also Opinion of Advocate General Bobek of 3 September 2020 - C-620/19 [ECLI:​EU:​C:​2020:​649], North Rhine-Westphalia - para. 103 f.).

26
The objective of Art. 23 (1) (j) GDPR also suggests that this is an opening clause that also benefits authorities. The opening clause guarantees the enforcement of civil law claims under national law and thus takes into account the special importance of the principles of national contract and procedural law (cf. Stender-Vorwachs/Wolff, in: Wolff/Brink, BeckOK data protection law, as of November 1, 2021, Art . 23 GDPR para. 52). It is not apparent why these procedural principles should no longer be worthy of protection when authorities are involved. According to the Advocate General, the aim of the regulation in letter j is to give the legislature the opportunity to give certain regulations on information and disclosure obligations for the investigation of evidence in civil proceedings in the event of an objection priority over the general regulations resulting from data protection . The special provisions that may exist in national law regarding information and disclosure obligations for the determination of evidence should remain unaffected by the data protection regulations. This must apply regardless of whether the parties are subjects of private law or public law and whether the action is based on a private or public interest (Opinion of Advocate General Bobek of 3 September 2020 - C-620/19, North Rhine-Westphalia - para .105). The Senate agrees with this view.

27
The history of the development of the standard does not lead to any other interpretation result. The opening clause largely corresponds to the catalog of Art. 13 Para. 1 of the Data Protection Directive 95/46/EC, which has been replaced by the General Data Protection Regulation. The possibility of restricting the rights of those affected and the information obligations to enforce civil claims i. p.d. However, Art. 23 (1) (j) GDPR was not included either in the catalog of Art. 13 (1) of Directive 95/46/EC or in the initial draft of the Commission for the General Data Protection Regulation. Rather, the introduction of the opening clause is based on a proposal by the Council, from which there is no indication that the Union legislature intended to limit the scope of this amendment to the enforcement claims of private parties (cf. Opinion of Advocate General Bobek of September 3, 2020 - C-620/19, North Rhine-Westphalia - para. 109). Even if the introduction of the letter j was prompted by the Promusicae judgment, which concerned the transfer of traffic data by an Internet access provider to private individuals for the civil prosecution of copyright infringements (ECJ, judgment of 29 January 2008 - C-275/06 [ECLI:​ EU:​C:​2008:​54], Promusicae -), it is not apparent why the EU legislature should necessarily have intended to limit the amendment to the specific facts of that legal dispute (cf. Opinion of Advocate General Bobek of 3 September 2020 - C-620/19, North Rhine-Westphalia - para. 111).

28
(2) The defense against civil claims is covered by the opening clause of Art. 23 Para. 1 Letter j GDPR. In contrast to Art. 23 Para. 1 Letter j GDPR, which only provides for restrictions on the enforcement of civil law claims, Section 32c Para. 1 No. 2 AO also mentions the defense against civil law claims in addition to the "assertion, exercise or defense of civil law claims". . It is true that the term "enforcement" used by the opening clause of Art. 23 (1) (j) GDPR refers to the sphere of the claimant according to conventional understanding and is primarily used as a synonym for the execution or enforcement of a claim that is already established on the merits used. The defense against civil claims can therefore not be easily subsumed under the term "enforcement". However, an expanded interpretation of the feature is required. A narrow perspective would upset the procedural balance between the parties to the judicial process by favoring only the plaintiff. If the intention is not to interfere with the civil procedural position of the parties, this must apply to both the assertion and the defense of civil claims. There is no reason why, in civil proceedings, the assertion of claims should enjoy special protection while the defense against civil claims does not. Depending on the distribution of the burden of proof, the special national regulations on information and disclosure obligations for the determination of evidence in civil proceedings can benefit both the claimant and the respondent. The protection of the civil procedural position of the parties under national law, as intended by Art. 23 (1) (j) GDPR, suggests that the "enforcement" of civil claims as a generic term includes any exercise of a right that involves a claim both actively (assertion) and in from a passive (defense) point of view. Section 32c (1) no. 2 AO is therefore also covered by Art. 23 (1) (j) GDPR insofar as it excludes the right to information to defend against claims under civil law. The term "enforcement" also includes that of "defending" against the claim made by the plaintiff. This conclusion is not called into question by the fact that other provisions of the General Data Protection Regulation such as Article 18(1) and (2) and Article 21(1) use the phrase "enforcement, exercise or defense" of a right in the context of a judicial proceeding. These provisions do not use the term "enforcement" at the same time; they are therefore not suitable for a meaningful comparison (cf. Opinion of Advocate General Bobek of 3 September 2020 - C-620/19, North Rhine-Westphalia - para. 118 f.).

29
(3) Section 32c (1) no. 2 AO is also to be understood according to its meaning and purpose in such a way that the wording “asserted” also includes “claims that are still to be asserted” or “possible” claims. This understanding is covered by the opening clause of Art. 23 Para. 1 Letter j GDPR. If subparagraph (j) is aimed at protecting the civil procedural position of the parties under the domestic legal systems, this cannot only apply from the point at which a party has already obtained sufficient information and is thereby in a position to assert its claim. If the right to information were only excluded after the insolvency avoidance claim had been asserted, the norm would largely be ineffective because the insolvency administrator would have obtained the necessary data beforehand (BVerwG, decision of July 4, 2019 - 7 C 31.17 - NVwZ-RR 2019, 1015 para. 21 ). It is quite conceivable that special national legal provisions for the regulation of positions under civil procedural law already exist for an early stage, in which it is initially a question of determining the prerequisites on which a claim is based. In addition, it would be incomprehensible why the Union legislature should allow the Member States to adhere to certain rules on information and disclosure obligations for the determination of evidence not for all, but only for certain types or phases of civil proceedings. If reasons of protecting the integrity and fairness of civil procedures allow Member States to introduce limitations on the rights of data subjects and the obligations of controllers, these rules should in principle apply at every stage of the procedure. A restriction of the right of access only in the last phase of the procedure would no longer make any sense, since the claimant could have obtained all the necessary information by that point (opinion of Advocate General Bobek of 3 September 2020 - C-620/19, North Rhine-Westphalia - para 121 to 123).

30
bb) § 32c para. 1 no. 2 AO can also be based on Art. 23 para. 1 letter e GDPR. The concerns expressed in the order for reference that the requested tax information is not for the substantive tax claims, but primarily for the payment flows relevant to insolvency law as possibly contestable legal acts i. S.v. Section 129 (1) InsO is of interest, which is why the insolvency administrator's claim against the tax authority is not one "from the tax relationship" (BVerwG, decision of July 4, 2019 - 7 C 31.17 - NVwZ-RR 2019, 1015 marginal number 24 with w. N.), the now deciding Senate does not maintain. The notion of "Fiscal Area" i. p.d. Art. 23 para. 1 letter e GDPR does not require any restrictive interpretation to the effect that only the legal tax relationship would be covered. Letter e is not a restriction on the right of access to be interpreted narrowly, but merely the declaration of a legitimate aim which, by its very nature, is open in its formulation.

31
Art. 23 Para. 1 Letter e GDPR concerns the protection of other important objectives of general public interest of the Union or a Member State, in particular an important economic or financial interest of the Union or a Member State, for example in the monetary, budgetary and tax areas as well as in area of ​​public health and social security. If the interest pursued serves the general public and does not conflict with a regulation or principle of Union law, it falls under letter e (cf. Opinion of Advocate General Bobek of September 3, 2020 - C-620/19, North Rhine-Westphalia - para 130 ff.).

32
Section 32c (1) no. 2 AO aims to ensure equal, legal taxation and to secure tax revenue. In order to achieve these goals, tax authorities should not be better off than other debtors or creditors when it comes to claims under civil law, but also not worse off (BT-Drs. 18/12611 p. 88). There is no question that the goals of equal, lawful taxation and securing tax revenue are important goals in the general public interest. They are also recognized as legitimate objectives in the Union legal order (cf. Opinion of Advocate General Bobek of 3 September 2020 - C-620/19, North Rhine-Westphalia - para. 133). The legal basis of the tax claims remains unaffected by the insolvency challenge and the claim for reimbursement of services that are contested under insolvency law does not result directly from the tax relationship. Nevertheless, important goals of the general public interest in the budget and tax area can be adversely affected by a worse position of the tax authorities in the context of the insolvency challenge. Art. 23 para. 1 letter e GDPR does not indicate that the financial interest in the budget or tax area is only affected if the tax claim is affected in its legal basis or in its legal validity. Rather, the norm aims in a broader sense at the protection of "other important objectives of general public interest of the Union or a Member State" and names important economic or financial interests as examples, for example in the budget and tax area. Financial interests that can be assigned to the tax area can also be affected in insolvency law, for example in the context of contesting insolvency.

33
The successful challenge of insolvency and the subsequent, more difficult enforcement of tax claims in insolvency proceedings has a direct effect on ensuring even and lawful taxation and securing tax revenue. The consequence of successfully contesting the insolvency is that the creditor must register his outstanding claim in the insolvency table. The creditors are then satisfied according to the insolvency quota, which regularly only covers a fraction of the registered claim and can be zero. If the insolvency administrator received information from the tax authorities on the basis of a right of access to information that he could not access from other creditors, it would be easier for him to contest insolvency against the tax authorities. In this respect, the financial authorities would be worse off than private creditors. Due to the easier contesting of insolvency as a result of corresponding information access rights, the tax authorities ran the risk of having to repay larger amounts to the insolvency estate than other creditors. It is not the insolvency challenge itself that is problematic, but the facilitation of the procedural enforcement of the restitution claim against public authorities (cf. Cranshaw, DZWIR 2021, 361 <373>).

34
3. The judgments are based on a violation of Section 32e and Section 32c Paragraph 1 No. 2 AO. The Senate can decide the matter itself (cf. Section 144 (3) sentence 1 no. 1 VwGO). The right to access information from § 4 Para. 1 IFG NRW is excluded according to § 32e, § 32c Para. 1 No. 2 AO. The requirements of § 32c Para. 1 No. 2 AO are given in the present case. The plaintiff requests the information for the purpose of asserting insolvency avoidance claims, i.e. civil claims i. p.d. § 32c para. 1 no. 2 AO. The requested information is aimed at the characteristics of the insolvency avoidance that justify the claim and would enable the plaintiff to assert insolvency avoidance claims against the tax authorities. The provision of information is therefore suitable for impairing the legal entity of the tax authority in the defense against future insolvency avoidance claims.

35
The decision on costs follows from Section 154 (1) VwGO.