VGH München - 4 BV 21.2328

VGH München - 4 BV 21.2328
Court:	VGH München (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 13(1) of the Basic Law Article 24(4) sentence 5 of the Rules of Procedure
Decided:	27.09.2022
Published:
Parties:
National Case Number/Name:	4 BV 21.2328
European Case Law Identifier:
Appeal from:	VGH München Jugdement of 19 July 2021
Appeal to:	Unknown
Original Language(s):	German
Original Source:	VGH München (in German)
Initial Contributor:	n/a

The Bavarian Administrative Court dismissed an appeal relating to the installation of a water meter with radio reading at an architectural office. The Court confirmed that, as such, electronic water meter readings may constitute personal data.

English Summary

Facts

The plaintiff was the owner of a plot of land in the association area of the defendant, which operated a public water supply facility for the area. The building located on this property was used by the plaintiff and their employees exclusively as an architectural office. After the defendant had announced that the existing water meters would be replaced and converted to electronic water meters with the option of radio reading, the plaintiff objected by letter. The defendant rejected this objection. Allegedly, the right of objection pursuant to Article 24(4) sentence 5 of the Rules of Procedure did not apply to the plaintiff's property because a commercial enterprise was located there. Therefore, no personal data could be read out. Eventually, the water meter was installed using coercive measures and the plaintiff initiated court proceedings.

In its judgement of 29 July 2021, the Administrative Court of Munich ordered the defendant, upon complaint by the plaintiff, to switch off the radio module of the electronic water meter in the plaintiff's property. The court ruled that the right to object was exercised properly and should have been granted. However, the defendant appealed this position by referring to of Article 13(1) of the Basic Law on protection of personal data. Accordingly, the right to object only existed if the data concerned the occupants of houses. In the case of rooms used for commercial or professional purposes, it was not possible to draw conclusions about personal data, also because of the associated contacts with business partners and visits by customers.

The court in appeal had to consider, among others, whether information from the electronic water meter could be considered as personal data.

Holding

The court first noted that the the primary reason for the right to object to the installation of a water meter with radio reading was the protection of personal data. However, such data would only be collected if a unit equipped with its own radio water meter was occupied or otherwise used by one person and thus only the water consumption data of this individual person was recorded and read. Also in the case of flats or other premises that are jointly used by several persons, the recording of consumption data may under certain circumstances constitute an interference with the right to informational self-determination. The court recalled that Article 4(1) GDPR defines "personal data" as any information relating to an "identified or identifiable natural person".

In the present case, the premise was used as an architectural office by several persons at the same time. However, taking into account whether several persons are registered in a flat at the time of the objection or whether more than one person is working in a unit used for business purposes would lead to random results in many cases. In contrast, the sole link to the (usage) "unit" existing in the property supplied is appropriate, as structural conditions usually exist more permanently than personal usage relationships and are also easier to determine.

The court concluded that even in the case of joint use by several persons, if water consumption is continuously recorded by an electronic meter, it may be possible to draw conclusions about the consumption habits of individuals with only a little additional knowledge. Therefore, the court dismissed the appeal.

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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.

tenor

I. The defendant's appeal is dismissed.

II. The defendant bears the costs of the appeal proceedings.

III. The judgment is provisionally enforceable with regard to the cost decision. The defendant may avert enforcement by providing security or a deposit in the amount to be enforced, unless the plaintiff has previously provided security in the same amount.

IV. The revision is not admitted.
facts

In the appeal proceedings, the plaintiff only objects to the operation of the electronic water meter installed by the defendant in his property using the radio function.

The plaintiff is the owner of a property in the defendant's association area, which operates a public water supply facility for the association area as a special-purpose association. The building on this property is used by the plaintiff and his employees exclusively as an architect's office.

After the defendant announced that the previous water meters would be replaced step by step from 2019 and switched to electronic water meters with the option of radio reading, the plaintiff objected in a letter dated January 28, 2019. The defendant rejected this objection in a letter dated January 27, 2019 March 2019 onwards. The right of objection according to Art. 24 Para. 4 Sentence 5 GO does not apply to the plaintiff's property because a commercial enterprise is located there. Therefore, no personal data could be read.

In accordance with a toleration order by the defendant dated July 22, 2019, whereby the plaintiff was obliged to tolerate and support the installation of a radio-readable water meter on his property, the water meter on the plaintiff's property was replaced on October 7, 2019 using coercive measures .

In a judgment dated July 29, 2021, the Munich Administrative Court ordered the defendant to switch off the radio module of the electronic water meter in the plaintiff's premises, following a lawsuit filed by the plaintiff. The activation of the radio module of the electronic water meter in the plaintiff's premises is illegal and violates the plaintiff's rights because, pursuant to Article 24(4) sentences 5 to 7 of the GO, he has a right to object to the use of the radio module and he has duly exercised this right. The fact that the plaintiff's building is used as an architect's office and not for residential purposes does not conflict with the right of objection according to the clear wording of the law and according to the meaning and purpose of the right of objection to protect personal data. The justification for the law also speaks more in favor of this understanding of the norm. The fact that several people are working in the plaintiff's building also does not exclude the right to object. The defendant's interpretation, according to which Art. 24 (4) sentence 7 GO only applies to individuals who live in an apartment, leads to an excessive restriction of the right of objection and finds no support in the wording of the law.

The appeal of the defendant, which was approved by the administrative court, is directed against the judgment.

In support of the appeal, he argues that the administrative court's interpretation of Art. 24 (4) sentence 7 GO is unconvincing. The wording of the provision is to be interpreted restrictively according to the meaning and purpose of the provision and the reasoning of the law, which the legislature agreed to. The justification for the law is based on the residents of houses, insofar as it is possible to draw conclusions about individual persons. According to the meaning and purpose, the apartment, which is subject to the protection of Art. 13 Para. 1 GG, as well as personal data should be protected. The latter are only available when it comes to data on the residents of houses. In the case of rooms used commercially or professionally, it is not possible to draw conclusions about personal data, also because of the associated contacts with business partners and visits by customers. Finally, the interests of the facility providers must also be taken into account.

The defendant requests

to dismiss the lawsuit for the radio module to be switched off, amending sections II. and IV. of the judgment of the Munich Administrative Court of July 29, 2021.

The plaintiff requests

to dismiss the appeal.

He defended the judgment of the administrative court. The meaning and purpose of the relevant standards had not been drawn too broadly by the legislature. They didn't just protect individuals in homes.

For further details of the facts, reference is made to the court files of both instances and the submitted official files.
reasons

I. With the consent of the parties involved, the Senate decides without an oral hearing (§ 102 Para. 2 VwGO).

II. The admissible appeal of the defendant is unfounded. The administrative court rightly ordered the defendant to switch off the radio module of the electronic water meter in the plaintiff's property.

According to Art. 24 Para. 4 Sentence 1 GO, statutes according to Art. 24 Para. 1 No. 2 GO for water supply facilities can stipulate that the municipality is entitled to use and operate electronic water meters with or without a radio module. According to Art. 24 Para. 4 Sentence 5 GO, if a water meter with radio module is to be used, the municipality shall inform the party liable for the fee and the owner of the supplied object at least three weeks in advance in a comprehensible form separated from other information that they or a authorized users can independently object in writing to the operation of a water meter using the radio function within a period of two weeks after receipt of the notice. If one of the authorized persons exercises the right of objection in due time, an electronic water meter may not be operated using the radio function (Art. 24 para. 4 sentence 6 GO). According to Art. 24 para. 4 sentence 7 GO, sentences 5 and 6 do not apply if several units have a common water meter in a serviced property.

These legal provisions were made on the occasion of the new version of the Bavarian Data Protection Act (G.v. 15.5.2018, GVBl p. 230) in connection with the entry into force of the General Data Protection Regulation - GDPR - (Regulation EU/2016/679 of the European Parliament and Council of 27.4.2016 for the protection of natural persons in the processing of personal data, for the free movement of data and for the repeal of Directive 95/46/EC - OJ EU 2016, L 119, p. 1) in the Municipal Code in order to create a legal basis for possible infringements of fundamental rights (LT-Drs. 17/19628 p. 56).

The defendant has the authorization in Art. 24 Para. 4 Sentence 1 GO (cf. Art. 26 Para. 1 Sentence 1 KommZG) by issuing the amendment to the water tax statute (WAS) of November 5, 2018 in Section 19 Para. 1a WAS made use of. If a municipal statute giver uses this legal regulation option, he is also bound by the following provisions of Article 24 (4) sentences 2 to 7 GO.

According to Art. 24 para. 4 sentence 5 GO, the plaintiff was entitled to object as the party liable for the fee, owner and authorized user of the object supplied; he has also exercised his right to object in a timely manner, so that an electronic water meter may not be operated using the radio function. The objections raised by the defendant against it do not go through.

1. Art. 24 para. 4 sentence 5 GO cannot be interpreted restrictively to the effect that only residents of residential properties are entitled to object.

a) What is decisive for the interpretation of a legal provision is the objectified will of the legislature expressed in it, as it results from its wording and the context of meaning, and the connection with other legal provisions that also relate to the subject of the regulation covered by the contested provision (cf . VerfGH, E.v. 26.4.2022 - case 5-VII-19 - BayVBl 2022, 475 para. 50). As the administrative court rightly explained in its judgment, the wording of Art. 24 (4) sentence 5 GO leads to a clear result. Apart from the fact that the provision contains no reference to housing, the legislator uses the expressions debtor, owner and authorized user, i.e. persons who do not necessarily have to live in a property in order to obtain this property. In addition, as in Article 24(4) sentence 7 of the GO, he uses the term "supplied object". Obviously, this term cannot be interpreted to mean only dwellings; Finally, the municipal facility providers also supply other objects with water. Even the clear wording of the provision therefore does not allow for the interpretation desired by the defendant.

b) In addition, the provision is not to be interpreted restrictively in the sense of the defendant's view, even in terms of its sense and purpose. In the case of the right to object under Article 24(4) sentence 5 GO with regard to the use of the radio function, the protection of the home under Article 13(1) GG and Article 106(3) BV is not the priority; Rather, it primarily concerns the protection of personal data, and thus the right to informational self-determination in accordance with Article 2(1) in conjunction with Article 1(1) GG, Article 101 in conjunction with Article 100 sentence 1 BV (cf. LT-Drs. 17 /19626 p. 56 and 17/21815). However, personal data is not only available when it relates to the users of apartments. You are protected regardless of where the persons concerned are, e.g. B. in professionally used objects.

c) The broad interpretation of the right to object under Article 24(4) sentence 5 GO does not contradict the justification for the law either. It is true that the justification for the draft law of the state government for the originally proposed version of Art. 24 Para. 4 GO (LT-Drs. 17/19628 p. 56), which did not yet provide for a right of objection, spoke of "residents of houses" and saw a data protection problem especially in "houses with few residential units". However, the further justification shows that the installation and operation of electronic wireless water meters can in any case be associated with interference with the right to informational self-determination, even in properties other than apartments. The right to object in Art. 24 Para. 4 Sentence 5 GO and its exclusion in Art. 24 Para. 4 Sentence 7 GO were only included in the draft in the parliamentary legislative process. According to the justification of the amendment to Art. 24 Para. 4 Sentence 5 GO (LT-Drs. 17/20500), the regulation is intended to clarify who may exercise the right of withdrawal, namely on the one hand, since it is a structural change, the Owner, and on the other hand, since it is about the protection of personal data, the authorized user (e.g. a tenant). There is no mention at any point of a limitation of the regulation to residential properties, so that commercially or otherwise used premises with a water connection are also included. This interpretation also corresponds to the legal opinion of the Bavarian State Ministry of the Interior, Sport and Integration, which is responsible for municipal law, as expressed in the notes on the official model statute (BayMBl. No. 98 of March 2nd, 2019 Annex 2 No. 10.6. ).

2. The plaintiff's right of objection is also not excluded under Art. 24 (4) sentence 7 GO. In his property there are not several units with a common water meter, but only a single (professional) unit in the form of his architectural office. The fact that the plaintiff and his employees use the office together does not lead to a different legal assessment.

a) The provision of Art. 24 (4) sentence 7 GO excluding the right of withdrawal cannot be interpreted restrictively to the effect that, despite the presence of only one unit in a supplied property, the right of withdrawal is excluded if the unit is owned by more than one person is being used. The wording of the law does not refer to how many people live in an apartment, use a property or stay in a property, but only differentiates according to type whether there are several units supplied via the same water meter in a supplied property or whether they are a single entity acts. Because only in the first case can it be assumed that no conclusions can be drawn about individual consumption behavior in the individual unit, taking into account the restrictions on storage, processing, reading and use of the data standardized in Article 24 (4) sentences 2 to 4 GO (cf. LT-Drs. 17/21815). If the legislature had also wanted to exclude the right of objection with regard to objects that have only one unit but are occupied or used by several people, they would have had to expressly standardize this restriction.

b) This interpretation based on the wording also corresponds to the sense and purpose of the regulation. The overriding reason for the right of objection is - as explained under No. 1 - the protection of personal data. However, such data is not only collected if a unit equipped with its own wireless water meter is occupied or otherwise used by only one person and thus only the water consumption data of this individual person is recorded and read out. Even in the case of apartments or other premises that are used jointly by several people, the collection of consumption data may under certain circumstances be an encroachment on the right to informational self-determination.

With the administrative court, the parties involved also correctly assume the legal definition of personal data in Art. 4 No. 1 DSGVO. According to this, personal data is any information relating to an identified or identifiable natural person. In this respect, according to Art. 4 No. 1 GDPR, it is sufficient that a specific natural person can be identified directly or indirectly, in particular by means of assignment to an identifier such as a name, an identification number, location data or a special identity-defining feature (cf . Also BVerwG, U.v. 27.11.2014 - 7 C 20.12 - BVerwGE 151, 1 para. 41 with further references). When operating a water meter, this is not only the case when the recorded consumption data relate to an apartment or other building unit used by a single person. Because even when shared by several people, if the water consumption is continuously recorded by an electronic meter, conclusions can be drawn about the consumption habits of individuals with little additional knowledge (cf. BayVGH, B.v. 7.3.2022 - 4 CS 21.2254 - BayVBl 2022 , 412 para. 27; Swiss Federal Supreme Court, U.v. 5.1.2021 - 1C_273/2020 - EuGRZ 2021, 228 juris para. 36).

c) The wording of the clear regulation of the exclusion of the right of objection in Art. 24 (4) sentence 7 GO also avoids legal uncertainties. The question of whether a unit is only legitimately used by one person is often difficult to answer, especially in the case of commercial or professional units, but also in the case of apartments, e.g. because family members are only temporarily present. In any case, the right of revocation only exists for the period of two weeks specified in Art. 24 Para. 4 Sentence 5 GO after receipt of the information from the municipality on the intended use of a water meter with radio module. Determining whether several people were registered in a dwelling at the time of the objection or whether more than one person was working in a professionally used unit would in many cases lead to random results. The sole connection to the (usage) "unit" existing in the supplied object is appropriate, however, since structural conditions usually exist more permanently than personal usage conditions and can also be determined more easily (cf. BayVGH, B.v. 7.3.2022, loc.cit. Rn. 35 ).

III. The cost decision follows from Section 154 (2) VwGO. The decision on the provisional enforceability is based on Section 167 (2) VwGO in conjunction with Section 708 No. 11, Section 711 ZPO.

IV. The revision was not allowed because there are no reasons according to § 132 Para. 2 No. 1 VwGO.