WSA Kielce - I SA/Ke 31/21

WSA Kielce - I SA/Ke 31/21
Court:	WSA Kielce (Poland)
Jurisdiction:	Poland
Relevant Law:	Article 15 GDPR Article 16 GDPR Article 18 GDPR Article 21 GDPR Article 34(1) GDPR Article 75 GDPR Article 76 GDPR
Decided:	25.03.2021
Published:
Parties:
National Case Number/Name:	I SA/Ke 31/21
European Case Law Identifier:
Appeal from:	SKO Kielce (Poland)
Appeal to:
Original Language(s):	Polish
Original Source:	Centralna Baza Orzeczeń Sądów Administracyjnych (in Polish)
Initial Contributor:	Agnieszka Rapcewicz

The Provincial Administrative Court in Kielce dismissed a complaint against a decision to retain a driving licence and to disclose information about it in a central information system. The Court held that the issues raised by the appellant with regard to the protection of personal data or the proceedings conducted in this respect by the DPA remained beyond the scope of the case.

English Summary

Facts

The applicant was the subject of a decision by the district governor to stop his driving licence on the ground that he had exceeded the speed limit by more than 50 km/h. That decision was upheld by the Local Government Appeal Court. The applicant appealed to the Provincial Administrative Court in Kielce. In his appeal, he argued, inter alia, that in the case there had been a breach of the provisions on the protection of the applicant's personal data on the part of the District Office and a failure on the part of the District Office and the Self-Governmental Appeals Board to take steps to inform the persons named in the decision and the President of the Office for Personal Data Protection of this breach (the leak of sensitive data).

Holding

The Provincial Administrative Court in Kielce dismissed the appeal.

Comment

The complainant pointed out that the authorities had overlooked the fact that the Ombudsman was conducting proceedings in this case, which may have resulted in a cassation of the ruling issued, as well as in disciplinary proceedings against the judge issuing the ruling in this case on the alleged offence committed by the party, which was based on the determination that since the owner of the vehicle indicated by the speed camera device was the complainant W.B., it was certainly him who had committed the offence by speeding in a built-up area. The applicant indicated that he was the owner of 3 vehicles, which were also driven by other persons, including family members. The fact that he was not willing to name the person who was driving the vehicle on the date of the incident in order not to be liable under Article 234 of the Penal Code did not mean that he himself was driving the vehicle, especially in the situation of an unclear photo of the person taken by the speed camera.

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English Machine Translation of the Decision

The decision below is a machine translation of the Polish original. Please refer to the Polish original for more details.

JUDGMENT
Provinial Administrative Court (WSA) in Kielce, in the following composition Presiding Judge WSA Danuta Kuchta, Judges WSA Judge Artur Adamiec, WSA Judge Mirosław Surma (spr.), Protocols Senior Court Inspector Anna Adamczyk, having examined at a hearing on 25 March 2021 a case from a complaint filed by W.B. against the decision of the Local Government Appeal Court in K. of 13 August 2020 No. (...) on the retention of a driving licence, dismisses the complaint.

EXPLANATORY MEMORANDUM
The Local Government Appeal Court (Samorządowe Kolegium Odwoławcze) in K. (hereinafter: the College, the appellate body), by the decision of 13 August 2020 No. (...), upheld the decision of the Starost of S. No. (...) of 9 March 2020 to withhold W.B.'s category B driving licence (No. (...), issued on print M (...), 5 December 2011 by the Starost of S.) for a period of 3 months, starting from the date of return of the driving licence, and to oblige him to return the driving licence to the Starost of S. within 7 days of receipt of the decision.

1.1 The College indicated that by letter of 3 January 2019. The Chief Inspector of Road Transport informed the Starost of S. about the discovery of a violation by W.B. consisting in driving a vehicle of the make (...) reg. no. (...) on 23 August 2018 in the locality of O. DK74 gm. O., pov. of W. and exceeding in a built-up area the permitted speed by 61 km/h, thus committing an act under Article 92a of the Code of Offences. He attached to the letter a motion for punishment of the above mentioned person to the District Court in W.

1.2 The information of the Chief Inspector of Road Transport constitutes information referred to in Article 7(1)(2) of the Act of 20 March 2015 amending the Act - Penal Code and some other acts (Journal of Laws of 2015, item 541 as amended), which is the basis for issuing the decision referred to in Article 102(1)(4) of the Act of 5 January 2011 on vehicle drivers (Journal of Laws of 2019, item 341 as amended), concerning the detention of a driving licence for 3 months. The provisions of Article 102 of the Act on Vehicle Drivers are of an obligatory nature. In case of occurrence of the circumstances specified therein, the administrative authority is obliged to issue a decision on stopping the driving licence. The basis for impounding a driving license and issuing a decision on impounding a driving license is the mere fact of finding an offence, i.e. driving a vehicle at a speed exceeding the speed limit by more than 50 km/h in a built-up area. Public administration authorities do not examine in what circumstances the offence was committed, nor the circumstances concerning the manner of speed measurement or the type of equipment used for that purpose. The authority conducting proceedings for the retention of a driving licence under Article 102(1)(4) of the Act on Driving Drivers may not invoke, either ex officio or at the request of a party, evidence to confirm or verify the contents of the information referred to in Article 7(1)(2) of the above-mentioned Act of 20 March 2015. The staroste, having received information about exceeding the speed limit by more than 50 km/h in a built-up area, is obliged to issue a decision stopping the driving licence. The administrative body does not conduct an investigation, does not call experts and does not examine the premises of speeding. The mere information that a driver has exceeded the speed limit in a built-up area by more than 50 km/h is sufficient to issue a decision to stop his driving licence for 3 months. Moreover, the appellate authority emphasised that the court, by a final judgment, found that W.B. had committed the act he was charged with, i.e. an offence under Article 92a of the Code of Criminal Offences. Both the authority of first instance and the College are bound by the letter of the traffic control authority as well as the final court verdict. On the other hand, a court judgment, i.e. its reversal or amendment may result in a possible resumption of the proceedings which ended with this decision.

1.3 Referring to the grounds of appeal, the authority explained that there had been no violation of Article 107 § 1 and § 3 of the Act of 14 June 1960 - the Code of Administrative Procedure, hereinafter: 'the Code of Administrative Procedure'. The Starost issued his decision on 9 March 2020. Due to its ineffective delivery, he could only deliver the same decision to the party again. He could not issue another decision in the case and mark it with a later date because he would be exposed to the charge of issuing a second decision in the same case, i.e. issuing a decision in gross violation of the law, referred to in Article 156(1)(3) of the Code of Administrative Procedure. The exclusion of an employee or a member of a collective body, i.e. the assessment as to whether there are grounds for exclusion from adjudication, should be considered in a specific case. It is not possible, however, to demand such exclusion in abstracto. The College regarded as unfounded the allegation of a breach of Article 24(1)(1) and (6) of the Code of Administrative Procedure. K. was subject to exclusion from participation in the proceedings before the body of first instance, and also that the decision issued by him under the authority of the Starosta S. is a defective decision.

2. W.B. filed a complaint against the above decision. He requested that:

1. the WSA to recognise that in the case there had been a gross breach of the provisions on the protection of the applicant's personal data on the part of the District Starost Office in (...) and that the Starost Office and the Self-Government Appellate Board had failed to take steps to inform the persons named in the decision and the President of the Office for Personal Data Protection of the leakage of sensitive data about the breach;

2. acknowledging that the leakage of sensitive data of the persons referred to by name, in accordance with the case law of the Supreme Court, did not constitute a so-called typing error and the Self-Government Appellate Board was obliged to correct the administrative action by acknowledging the invalidity of the issued documents: request, decision or decision pursuant to Article 156(1) of the Code of Administrative Procedure;

3. acknowledgement that with regard to the filing by the appellant of an application for exclusion of Z.B., an employee of the Starost's Office - Department of Transport, from participation in the case in question, the starost's office acted in inactivity on the part of the authority, and that the application for exclusion of G.H. from participation in the SKO's proceedings was inactivity on the part of the organ. the SKO failed to act as an authority by deliberately failing to initiate proceedings in the case and by excluding the persons in question, which flagrantly infringes the provisions of the Code of Administrative Procedure and to recognise that the persons in question became parties to the proceedings pursuant to Article 24 of the Code of Administrative Procedure;

4. recognising that Z. K. in retaliation for filing a motion for exclusion of his person from participation in the case, intentionally and knowingly acting to the detriment of the appellant, grossly violating the provisions of the Code of Administrative Procedure, as an act of vengeance, passed on to the CEPIK system information that W.B. had his driving licence suspended, which is to result in the fact that in the event of a road check by authorised services, actions are to be taken accusing W.B. of illegally driving a vehicle during the period of suspension of the licence, which is to result in prolongation of the period of suspension of the driving licence for another 6-month period;
5. issue a decision ordering the Poviat Starosty to withdraw from the CEPIK system information on the temporary withdrawal of driving licences until the proceedings conducted by the Ombudsman and final court decisions connected with the case (administrative courts, civil courts) have been fully completed.

Furthermore, the applicant requested that the 'defendant' be ordered to pay all the costs of the proceedings, including lawyers' fees.

2.1 In justification, the applicant pointed out that the district governor not only failed to inform the named persons in the order of initiation of the proceedings for an administrative decision on the retention of the driving licence (...) of 19 September 2019 about the leak of sensitive data, but trivialised the event by concealing it and together with the adjudicating panel from the SKO (G.H.). The above resulted in a gross violation of the provisions of the GDPR (Articles 15, 16, 18, 20, 21 RODO, in conjunction with Articles 75, 76 GDPR processing of personal data). He pointed out that an attempt was made to conceal the data leakage in view of the financial consequences for the Starosty as well as the College resulting from such circumstances. The authorities failed to comply with the obligation under Article 34(1) of Regulation 2016/679. As data controllers, they did not take any steps to protect the persons mentioned from the consequences of pecuniary or non-pecuniary damage. Despite the actions taken in this regard to conceal the data leak in this case, the President of the Office for PErsonal Data Protection initiated proceedings on the basis of the application submitted by the complainant.

2.2 Through such actions of the authorities, the College member G.H. and Z.K. from the Department of Transport of the Poviat Starosty in S. - they became a party to the proceedings within the meaning of Article 24 of the Code of Administrative Procedure. The aforementioned acted motivated by negative emotions and willingness to take revenge for the application for their exclusion from participation in the case.

2.3 The authorities ignored the issue of the Ombudsman proceeding in this case. It may result in a cassation of the ruling issued, as well as in disciplinary proceedings against the judge issuing a ruling in this case on the alleged offence committed by the party, which was based on the determination that since the owner of the vehicle indicated by the speed camera device is the complainant W.B., it was certainly him who committed the offence by speeding in a built-up area. The applicant indicated that he is the owner of 3 vehicles, which are also driven by other persons, including family members. The fact that he was not willing to name the person who was driving the vehicle on the date of the incident in order not to be liable under Article 234 of the Penal Code does not mean that he himself was driving the vehicle, especially in the situation of an unclear photo of the person taken by the speed camera.

2.4 The complainant cannot be found guilty, as well as the prerequisites of the necessity to provide information to the CEPIK system about the withdrawal of the driving licence were not fulfilled. In the situation when the proceedings are completed by the ROP and the President of the Office for Competition and Consumer Protection, and in the situation when the ruling issued proves beyond any doubt that the proceedings were lost - he himself will transfer the driving licence to the Traffic Department for the period of 3 months. So far, no such decision has been made. According to the applicant, transmission of information to the CEPIK system about the withdrawal of the applicant's driving licence by Z.K. and G. H. and the issuing of the decision by the SKO as final is not only unauthorised, but also a criminal act, in particular liability under Article 234 of the Criminal Code and liability for damages through court proceedings, including civil proceedings. Moreover, he argued that, during the course of the case in question, it was not necessary to transmit this information to the CEPIK system - even until the proceedings had been concluded; this is unauthorised and detrimental to the applicant.

2.5 It is reasonable and necessary to issue a court order to the authority, i.e. the District Governor, to withdraw the information transmitted to the CEPIK system in the case on the retention of the driving licence for the complainant until the final resolution of the case.

2.6 In its reply to the complaint, the appellate authority upheld the position presented in the decision and filed for its dismissal.

3 The Provincial Administrative Court in Kielce held as follows:

3.1 In accordance with the principles expressed in Article 1 of the Act of 25 July 2002. Law on the system of administrative courts (j.t. Journal of Laws of 2021, item 137) and Article 134 § 1 of the Act of 30 August 2002. Law on proceedings before administrative courts (j. t. Dz. U. of 2019, item 2325), hereinafter referred to as: "p.p.s.a.", the court examines the appealed decision in terms of its compliance with the applicable law, both substantive and procedural, and is not - as a rule - bound by the allegations and conclusions of the complaint and the legal basis invoked. It follows from the wording of Article 145 par. 1 point 1 of the Administrative Court Procedure Code that the contested decision should be repealed if the court finds a violation of substantive law which affected the outcome of the case, violation of law providing grounds for reopening of the proceedings or other violation of procedural provisions if it could have significantly affected the outcome of the case.

3.2 Considering the case within the above-mentioned limits, the court concluded that the complaint did not merit consideration, as the contested decision did not violate the law. The facts of the case, as correctly determined by the administrative authorities, were accepted as the basis for the court's considerations. It should also be added that pursuant to the provision of Article 133 § 1 of p.p.s.a., judicial review is based on the factual and legal status existing on the date of issuing the appealed decision. In turn, it follows from the provision of Article 134 § 1 of p.p.s.a. that the court adjudicates within "the limits of the given case", which means that the administrative court may not make the legality of an administrative case other than the one in which the complaint was filed subject to examination. Thus, although the court of first instance is not bound by the boundaries of the complaint, being bound by the boundaries of the case, it cannot, by its assessments, enter into a matter other than that which was or should have been the subject of the administrative proceedings and the administrative acts issued therein.

3.3 In the realities of the present case, its borders, and thus the limits of the control exercised by the court, were determined by specific provisions of substantive law constituting the grounds for retention of a driving licence. According to art. 102 paragraph 1 point 4 of the Act on Driving Vehicles, a starost issues an administrative decision on confiscating a driving licence or a permit to drive a tram in the case where the driver exceeded the speed limit by more than 50 km/h in a built-up area. The provision of art. 102 par. 1c of this act stipulates that a starost issues a decision, referred to in par. 1 pt. 4 or 5, for a period of 3 months, making it immediately enforceable and obliging the driver to return the driving licence if the document has not been confiscated pursuant to art. 135 par. 1 of the Traffic Law. In turn, in accordance with the content of Article 7, paragraph 1, point 2 of the Act of 20 March 2015 amending the Act - Penal Code and some other acts, by the date indicated in the communication, which the minister in charge of information technology shall announce in his official journal and on the subject page of the Public Information Bulletin, specifying the date of implementation of technical solutions enabling the introduction, transfer, collection and making available from the central register of drivers of data on violations referred to in Chapter 15 of the Act amended in Article 5:
1) the entity which disclosed the commission of the infringement referred to in Art. 135 par. 1 item 1a of the Traffic Law Act or issued a final decision for this infringement shall immediately notify the head of the district (starosta) in charge of the place of residence of the driver of the vehicle;

2) the basis for issuing the decision referred to in Art. 102 paragraph 1 item 4 and 5 and paragraph 1d and Art. 103 paragraph 1 item 5 of the Law on Vehicle Drivers is the information referred to in item 1 or 3 respectively;

3) the traffic control body which has established the driving of a motor vehicle in circumstances referred to in Art. 102 par. 1d or Art. 103 par. 1 item 5 of the Act on Vehicle Drivers, shall immediately notify the district governor (starost) in charge of the place of residence of the vehicle driver.

3.4 It follows from the content of the aforementioned provisions that a sufficient premise for the issuance of a decision by an administrative body on the stopping of a driving licence - pursuant to Article 102(1)(4) of the Act on Vehicle Drivers in connection with Article 7(1)(1) and (2) of the Act of 20 March 2015 amending the Penal Code Act and certain other acts - is exceeding the permissible speed by more than 50 km/h in a built-up area. The factual basis for such a decision, which was clearly confirmed by the Supreme Administrative Court in the resolution of 1 July 2019, ref. no. I OPS 3/18 (available at http://orzeczenia.nsa.gov.pl/), may be constituted only by information on the disclosure of an act consisting of driving a vehicle exceeding the permitted speed by more than 50 km/h in a built-up area. In the justification of the resolution, the Supreme Administrative Court explained that the premise for issuing a decision by the administrative authority on withdrawal of a driving licence is exceeding the permitted speed by more than 50 km/h in a built-up area. The basis for issuance of the decision is the information on disclosure of commission of an infringement referred to in Art. 135 par. 1, point 1a of the Traffic Law Act or a final decision for such an infringement.

Fully sharing the position adopted in the aforementioned resolution (cf. also judgments of the Supreme Administrative Court: of 13 November 2019. I OSK 802/17, of 4 December 2019. I OSK 670/17, of 8 January 2020. I OSK 1290/18, of 6 October 2020. I OSK 2491/18, or of 13 October 2020. I OSK 2860/18 - available at http://orzeczenia.nsa.gov.pl/) and transferring them to the grounds of the case at hand, it should be indicated that by letter of 3 January 2019. The Chief Inspector of Road Transport, addressed to the starost, informed that the applicant exceeded the speed limit in a built-up area in Osjaków by 61 km/h. This letter indisputably constitutes information, referred to in Article 7, paragraph 1, point 2 of the Act on amendments to the Act - Penal Code and some other acts, and thus was a sufficient factual basis for issuing the decision referred to in Article 102, paragraph 1, point 4 of the Act on driving, i.e. the driving licence was stopped for 3 months. Additionally, it should be noted that the evidence in this case, which was highlighted by the appellate authority in the justification of the appealed decision, confirms that the appellant was found guilty and punished for the above-described act by a final judgment of the District Court in W. dated 24 April 2019, ref. no. (...), which constitutes an offence under Article 92a of the Code of Offences. In the light of these circumstances, the administrative body was obliged to issue a decision on the retention of the applicant's driving licence for 3 months. On the other hand, the circumstances indicated by the appellant (his failure to drive the vehicle at the time and place in question, the blurred photo from the speed camera and the fact that he owns three cars used by other people, including his family), which were supposed to confirm that it was not he who drove the vehicle, could not be the subject of assessment in the proceedings conducted by the starost. What is more, the findings adopted by the court in the misdemeanour case had not been challenged by the time the contested decision was issued, and they clearly show that it was W.B. who, on 23 August 2018 in the town of O., exceeded the permitted speed limit by 61 km/h in a built-up area. As indicated above, the basis for issuing a decision to stop the driving licence under Article 102, paragraph 1, point 4 of the Act on Driving, in the event that the driver exceeded the permissible speed, by more than 50 km/h in a built-up area, is the information on the disclosure of the commission of an infringement referred to in Article 135, paragraph 1, point 1a of the Road Traffic Law. This information is an official document (cf. the justification of the above mentioned resolution I OPS 3/18). In the light of the above, it should be assumed that the issues indicated by the appellant could not constitute grounds for challenging the legality of the contested decision. In other words, in the situation of receipt of the information described above, the starost is required to issue a decision on the retention of the driving licence.
3.5 Accordingly, on the date of the administrative body's ruling, there were no grounds for taking a different decision. In the context of the doubts raised by the appellant as to the enforceability of the contested decision and making an entry in the CEPIK system, it should be explained that the decision of the first instance authority already had the order of immediate enforceability and constituted the basis for making the relevant entries in the registration system. The issues raised by the appellant with regard to the protection of personal data or the proceedings conducted in this respect by the President of the Office for Harmonisation in the Internal Market (Urząd Komunikacji Elektronicznej - ODEP) remain outside the scope of the case as described above. The complainant was also a participant in the proceedings for rectification of the decision to take proceedings of 19 September 2019, in which he was instructed about the legal remedies available to him. The result expected by the applicant, in the form of annulment of the contested decision, could not be achieved either by the circumstances raised by the applicant to confirm the existence of grounds for exclusion of the member of the collective body (here: the Appeals Body) G. H. (mistakenly referred to by the applicant as G. H.). This member of the appellate body did not participate in the process of issuing the decision in the case, therefore it is pointless to assess the existence of grounds for exclusion in his case (Article 27 in conjunction with Article 24 § 1 of the Code of Administrative Procedure). On the other hand, the evidence in the case does not confirm that the grounds for exclusion of the employee referred to by the appellant in Article 24(1)(1) and (6) of the Code of Administrative Procedure exist with respect to Z. K., an employee of the body of first instance. Because of this case, no official inquiry, disciplinary proceedings were initiated against Z. K. an official investigation, disciplinary or criminal proceedings.

3.6 In view of the above, the court, pursuant to Article 151 p.p.s.a., dismissed the complaint.