BVwG - W214 2254151-1

BVwG - W214 2254151-1
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 4(7) GDPR Article 16 GDPR para 24 and 25 Heating law (Heizkostenabrechnungsgesetz)
Decided:	21.08.2024
Published:
Parties:
National Case Number/Name:	W214 2254151-1
European Case Law Identifier:	ECLI:AT:BVWG:2024:W214.2254151.1.00
Appeal from:	DSB (Austria) D124.4529 2022-0.144.747
Appeal to:	Unknown
Original Language(s):	German
Original Source:	RIS (Austria) (in German)
Initial Contributor:	wp

The Federal Administrative Court rejected an appeal against the DPA’s decision on right to rectification under Article 16 GDPR since the Austrian law provided for specific provisions to deal with rectification of heating consumption data.

English Summary

Facts

The data subject is the owner of an apartment. The controller managed the building where the data subject's apartment was located. The building heating was provided by a company (K-Company). Additionally, each apartment had an individual contract with another provider (I-Company).

Also, the controller concluded an agreement with I-Company according to which I-Company prepared the consumption invoices, using for that purpose data provided by the controller. The building's apartments were equipped with meters capable to send consumption data regarding water (cold and hot) & heating to I-Company. The apartments’ owners received the individual statements of water (cold and hot) & heating. Remote meter (radio-based) monitored the consumption.

The data subject's meter was not calibrated since 2018 and the data subject refused I-Company access to the apartment. Consequently, the data subject received consumption statement based on extrapolated values.

The data subject requested, under Article 16 GDPR, the controller to rectify their data regarding the extrapolated consumption. The controller claimed that they didn’t prepare the consumption invoices and that the data could not be rectified by them. In response, the data subject lodged a complaint with the Austrian DPA (DSB).

The DPA examined the case and found the controller didn’t transmit incorrect data used for billing the data subject. Moreover, it was the I-Company who prepared the individual invoices. Hence, the controller was unable to rectify the data. Additionally, for the DPA the controller was not a controller under Article 4(7) GDPR, as they didn’t determine the means and purposes of data processing.

The data subject initiated the appeal proceedings before the Federal Administrative Court (Bundesverwaltungsgericht).

Holding

The court dismissed the appeal.

The court found that the Controller was a data controller for the processing at hand. It was apparent that the controller determined the means and purposes of data processing even if the controller entered into an agreement with the I-Company to perform certain processing activity on their behalf.

However, the court referred to para 24 and 25 of the Austrian Heating law (Heizkostengesetz) that contained provisions on rectification of consumption data. As the more specific provision, the Austrian Heating law excluded the application of Article 16 GDPR in the case at hand since it provides for a specific procedure to challenge wrong calculations and information. The court highlighted the fact that the data subject already challenged the information using the process stipulated in the Austrian Heating law but his request was rejected.

Therefore, the court found no violation of the GDPR.

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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.

Decision date

08/21/2024

Standard

B-VG Art133 Para.4

GDPR Art16

GDPR Art4

VwGVG §28 Para.2

B-VG Art. 133 today B-VG Art. 133 valid from 01/01/2019 to 05/24/2018 last amended by BGBl. I No. 138/2017 B-VG Art. 133 valid from 01/01/2019 last amended by BGBl. I No. 22/2018 B-VG Art. 133 valid from 05/25/2018 to 12/31/2018 last amended by BGBl. I No. 22/2018 B-VG Art. 133 valid from 08/01/2014 to 05/24/2018 last amended amended by BGBl. I No. 164/2013 B-VG Art. 133 valid from 01.01.2014 to 31.07.2014 last amended by BGBl. I No. 51/2012 B-VG Art. 133 valid from 01.01.2004 to 31.12.2013 last amended by BGBl. I No. 100/2003 B-VG Art. 133 valid from 01.01.1975 to 31.12.2003 last amended by BGBl. No. 444/1974 B-VG Art. 133 valid from 25.12.1946 to 31.12.1974 last amended by BGBl. No. 211/1946 B-VG Art. 133 valid from 12/19/1945 to 12/24/1946 last amended by StGBl. No. 4/1945 B-VG Art. 133 valid from 01/03/1930 to 06/30/1934

VwGVG § 28 today VwGVG § 28 valid from 01/01/2019 last amended by BGBl. I No. 138/2017 VwGVG § 28 valid from 01/01/2014 to 12/31/2018

Ruling

W214 2254151-1/11E

IN THE NAME OF THE REPUBLIC!

The Federal Administrative Court has Judge Dr. Eva SOUHRADA-KIRCHMAYER as chair and the expert lay judges Mag. Viktoria HAIDINGER, LL.M. and Mag. Claudia KRAL-BAST as assessors on the complaint of 1. XXXX and 2. XXXX, 2. represented by 1., against the decision of the Data Protection Authority dated March 17, 2022, reference number D124.4529 2022-0.144.747, rightly ruled: The Federal Administrative Court, represented by Judge Dr. Eva SOUHRADA-KIRCHMAYER as chair and the expert lay judges Mag. Viktoria HAIDINGER, LL.M. and Mag. Claudia KRAL-BAST as assessors on the complaint of 1. roman 40 and 2. roman 40 , 2. represented by 1., against the decision of the data protection authority dated March 17, 2022, reference number D124.4529 2022-0.144.747, rightly ruled:

A)

The complaint is dismissed as unfounded pursuant to Section 28 Paragraph 2 of the Administrative Court Procedure Act, Federal Law Gazette I No. 33/2013 as amended (VwGVG).The complaint is dismissed as unfounded pursuant to Paragraph 28, Paragraph 2, Administrative Court Procedure Act, Federal Law Gazette Part One, No. 33 of 2013, as amended (VwGVG).

B)

The appeal is not admissible pursuant to Article 133 Paragraph 4 of the B-VG. The appeal is not admissible according to Article 133, paragraph 4, B-VG.

Text

Reasons for the decision:

I. Procedure: Roman one. Procedure:

1. In their complaint of September 16, 2020 addressed to the Data Protection Authority (DSB, authority concerned before the Federal Administrative Court) (submitted again and improved with a submission of September 20, 2021), the complaining parties claimed a violation of the right to rectification pursuant to Art. 16 GDPR by the real estate law firm XXXX (former respondent before the authority concerned, now co-participating party before the Federal Administrative Court). In summary, it was argued that the co-participating party was not entitled to pass on the complainants' data to third parties for processing and was also not entitled to have the consumption values extrapolated and processed incorrectly. The information on billing, total costs and consumption values in the individual billing dated June 14, 2021 for the billing period January 1, 2020 - December 31, 2020 is incorrect. 1. In their complaint dated September 16, 2020 addressed to the Data Protection Authority (DSB, authority concerned before the Federal Administrative Court) (submitted again and improved with a submission dated September 20, 2021), the complaining parties alleged a violation of the right to rectification pursuant to Article 16, GDPR by the real estate law firm roman 40 (former respondent before the authority concerned, now co-participating party before the Federal Administrative Court). In summary, it was argued that the co-participating party was not entitled to pass on the complainants' data to third parties for processing and was also not entitled to have the consumption values extrapolated and processed incorrectly. The information on billing, total costs and consumption values in the individual billing dated June 14, 2021 for the billing period January 1, 2020 - December 31, 2020 is incorrect.

2. At the request of the authority concerned, the party involved submitted a statement on the data protection complaint on December 6, 2021 and argued that there were no incorrect personal data or data that could be corrected. In the residential complex in question, XXXX GmbH (hereinafter: i-GmbH) was commissioned to bill the heating and water costs. XXXX GmbH (hereinafter: K-GmbH) sends the total consumption quantities or total consumption costs of the residential complex without reference to the apartment owners directly to i-GmbH, which prepares the individual bill for each apartment owner after receiving and reading the meter readings. Since 2009, the co-participating party has sent the data required for the annual billing (name, top number, usable area, previous year's billing by i-GmbH) as well as all costs incurred in the previous calendar year (meter reading costs, meter rental and invoice from K-GmbH) to i-GmbH. The co-participating party only forwards the individual invoices to the apartment owners; it does not prepare the heating bill and therefore cannot change it. It is impossible for the co-participating party to pass on "false consumption data" to third parties. According to Section 11 HeizKG, either the heat supplier itself or a company specifically geared to this purpose, i.e. K-GmbH or i-GmbH, must determine the consumption shares of the complaining parties. The co-participating party is therefore not authorized to determine the consumption shares at all. The co-participating party only has to provide the complaining parties with an annual statement in accordance with Section 34 WEG, and the costs complained of by the complaining parties may in any case be offset. In addition, meter readings and consumption values for heating and water are not personal data. 2. At the request of the authority concerned, the co-participating party submitted a statement on the data protection complaint on December 6, 2021 and argued that there were no incorrect personal data or data that could be corrected. In the residential complex in question, roman 40 GmbH (hereinafter: i-GmbH) was commissioned to bill the heating and water costs. roman 40 GmbH (hereinafter: K-GmbH) sends the total consumption quantities or total consumption costs of the residential complex without reference to the apartment owners directly to i-GmbH, which prepares the individual bill for each apartment owner after receiving and reading the meter readings. Since 2009, the co-participating party has sent the data required for the annual billing (name, top number, usable area, previous year's billing by i-GmbH) as well as all costs incurred in the previous calendar year (meter reading costs, meter rental and invoice from K-GmbH) to i-GmbH. The co-participating party only forwards the individual invoices to the apartment owners; it does not prepare the heating bill and therefore cannot change it. It is impossible for the co-participating party to pass on "false consumption data" to third parties. According to Paragraph 11 of the Heating Act, either the heat supplier itself or a company specifically geared towards this purpose, i.e. K-GmbH or i-GmbH, must determine the consumption shares of the complaining parties. The co-participating party is therefore not authorized to determine the consumption shares at all. The co-participating party only has to provide the complaining parties with an annual statement in accordance with Section 34 of the WEG, and the costs complained of by the complaining parties may in any case be offset. Meter readings and consumption values for heating and water are also not personal data.

3. The complaining parties replied to this - after the parties had heard the results of the investigation - in their statements of February 23, 2022 and March 2, 2022 that, according to the case law of the Supreme Court, the administrator has a personal obligation to invoice within the scope of the HeizKG. According to Section 34 of the WEG, the co-participating party owes an invoice for the heating and hot water costs, and is not authorized to use an external company to prepare the invoices. K-GmbH operates the systems to supply the owners' association with heat, which in turn passes the heat on to the individual apartment owners. Of course, K-GmbH does not send its heat bills to i-GmbH, but to the community of owners as the service recipient and statutory heat supplier in accordance with Section 2 Z 3 lit. b HeizKG. i-GmbH is not a heat supplier within the meaning of HeizKG and has not been commissioned to read and bill the heating costs. The individual invoices it prepares are therefore all unlawful and incorrect. 3. The complaining parties replied - after hearing the results of the investigation - in their statements of February 23, 2022 and March 2, 2022 that according to the case law of the OGH, the administrator has a personal obligation to invoice within the scope of the HeizKG. According to Paragraph 34, WEG, the party involved owes an invoice for the heating and hot water costs and is not authorized to use an external company to prepare the invoices. K-GmbH operates the systems to supply heat to the owners' association, which in turn passes the heat on to the individual apartment owners. K-GmbH does not send its heat bills to i-GmbH, of course, but to the owners' association as the service recipient and legal heat supplier in accordance with paragraph 2, item 3, letter b, HeizKG. i-GmbH is not a heat supplier within the meaning of HeizKG and has not been commissioned to read and bill the heating costs. The individual bills it creates are therefore all illegal and incorrect.

4. With the now contested decision of the authority concerned, the data protection complaint of the complaining parties was rejected due to an alleged violation of the right to rectification.

In its justification, the authority concerned stated that it follows from the credible and comprehensible statement of the co-participating party dated December 6, 2021 that the co-participating party itself had not passed on any incorrect consumption data to third parties, since according to Section 11 HeizKG, only the heat provider itself or a company specially geared towards this purpose may determine the consumption shares, accordingly K-GmbH or i-GmbH. The co-participating party does not prepare the heating cost statements itself, only i-GmbH. The co-participating party only sent the heating cost statements to the condominium owners, so it could not change or correct the individual invoices. The party involved therefore decides neither on the purposes nor on the means of data processing and is therefore not responsible within the meaning of Art. 4 Z 7 GDPR. This is only the heat provider itself or a company specifically geared towards this within the meaning of Section 11 HeizKG, thus only K-GmbH or i-GmbH. Since there is no passive legitimation, the complaint had to be dismissed for this reason alone. In the course of the investigation carried out before the authority concerned, the underlying facts did not give rise to any suspicion of a criminal offense by the party involved. The complaint had therefore to be dismissed. In its justification, the authority concerned stated that it follows from the credible and comprehensible statement of the co-participating party dated December 6, 2021 that the co-participating party itself had not passed on any false consumption data to third parties, since according to Paragraph 11 of the HeizKG, only the heat provider itself or a company specially geared to this purpose may determine the consumption shares, accordingly K-GmbH or i-GmbH. The co-participating party does not prepare the heating cost statements itself, only i-GmbH does. The co-participating party only sends the heating cost statements to the condominium owners, so it cannot change or correct the individual invoices. The co-participating party therefore decides neither on the purposes nor on the means of data processing and is therefore not responsible within the meaning of Article 4, Section 7, GDPR. This is only the heat provider itself or a company specifically geared towards this within the meaning of Section 11, HeizKG, and therefore only K-GmbH or i-GmbH. Since there is no passive legitimation, the complaint had to be dismissed for this reason alone. In the course of the investigation carried out before the authority concerned, no suspicion of a criminal offense by the co-involved party arose from the underlying facts. The complaint had therefore to be dismissed.

6. The complainant lodged a complaint against this decision with the Federal Administrative Court in a written submission dated April 15, 2022, within the deadline.

In summary, it was stated that i-GmbH only plays the role of the processor because it was commissioned by the co-involved party as the responsible party under a service contract to carry out the annual meter reading and billing. The processing of personal data is necessary to fulfill this service contract, since otherwise a personnel cost allocation in the context of billing would not be possible. In the present case, the HeizKG only regulates the distribution of the total heating and hot water costs according to consumption shares. Both pieces of information were deliberately passed on to i-GmbH by the co-involved party in an incorrect manner. The co-involved party has been managing the property since 2007. According to Section 20 Paragraph 3 WEG 2002, as the administrator, it is responsible for the correctness and accuracy of the billing. In fact, the co-involved party is not authorized to use a company specifically geared towards billing the heating and hot water costs in accordance with the provisions of the HeizKG, which unlawfully creates incorrect individual bills for it, which it then presents to the apartment owners in accordance with its billing obligation. In summary, it was stated that i-GmbH only takes on the role of the processor because it has been commissioned by the co-involved party as the responsible party to carry out the annual meter readings and prepare the bills under a service contract. The processing of personal data is necessary to fulfill this service contract, as otherwise a personnel cost allocation would not be possible in the context of billing. In the present case, the HeizKG only regulates the distribution of the total heating and hot water costs according to consumption shares. Both pieces of information were deliberately passed on to i-GmbH by the co-participating party in an incorrect manner. The co-participating party has been managing the property since 2007. According to paragraph 20, paragraph 3, WEG 2002, it is responsible as the administrator for the correctness and accuracy of the billing. In fact, the co-participating party is not authorized to use a specially designed company to bill the heating and hot water costs in accordance with the provisions of the HeizKG, which unlawfully creates incorrect individual bills for it, which it then presents to the apartment owners in accordance with its billing obligation.

7. By letter dated April 20, 2022, the authority concerned submitted the complaint, including the relevant act of the administrative procedure, to the Federal Administrative Court for a decision.

8. The Federal Administrative Court informed the co-participating party of the complaint and gave it the opportunity to submit a statement.

9. The co-participating party submitted a statement on June 6, 2023 and stated that it was first noted that the co-participating party and its legal representative had never knowingly made incorrect statements or suppressed evidence. The co-participating party had since terminated the management contract and had no longer acted as property manager for the property in question since January 1, 2023. Several decisions had already been made regarding the heat supplier status. The co-participating party, which does not have the supplier status, has no obligation to invoice under the HeizKG. The co-participating party has nothing to do with determining the meter readings and consumption quantities. In fact, i-GmbH (or at most K-GmbH) decides why and how the consumption data is (must be) processed. In any case, the co-participating party has no decision-making authority in this regard. The co-participating party cannot influence how the consumption data is to be shown in the individual bills because it does not have the heat-emitting capacity. Regardless of this, the individual bills were drawn up in accordance with the law. Furthermore, the question of whether i-GmbH may extrapolate the consumption data or whether the specific consumption data should have been used is not covered by a request for correction under Art. 16 GDPR. 9. The co-participating party submitted a statement on June 6, 2023 and stated that it was first noted that the co-participating party and its legal representative had never knowingly made an incorrect statement or suppressed evidence. The co-participating party has since terminated the management contract and has not acted as property manager for the property in question since January 1, 2023. Several decisions have already been made regarding the heat supplier status. The co-participating party, which does not have the supplier status, has no obligation to bill under the HeizKG. The co-participating party has nothing to do with determining the meter readings or the consumption quantities. In substance, i-GmbH (or at most K-GmbH) decides why and in what way the consumption data is (must be) processed. In any case, the co-participating party has no decision-making authority in this regard. The party involved cannot influence how the consumption data are to be shown in the individual invoices because it does not have the heat-emitting properties. Regardless of this, the individual invoices were drawn up in accordance with the law. Furthermore, the question of whether i-GmbH may extrapolate the consumption data or whether the specific consumption data should have been used is not covered by a request for correction under Article 16 of the GDPR.

10. The complaining parties submitted a further statement on July 19, 2023, in which they essentially repeated their previous submissions and, among other things, introduced a statement from i-GmbH dated October 12, 2022 into the proceedings.

II. The Federal Administrative Court considered: Roman II. The Federal Administrative Court considered:

1. Findings:

The procedural course set out under point I. is the basis for the findings. The one under point Roman one. The findings are based on the procedure outlined above.

This means that it is clear in particular:

The complaining parties are each the owners of XXXX tel shares in the property with the address XXXX , each of which is associated with condominium ownership of the apartment top no. XXXX. The complaining parties are each the owners of Roman 40 tel shares in the property with the address Roman 40 , each of which is associated with condominium ownership of the apartment top no. Roman 40.

The co-participating party was the administrator of this property from January 1, 2007 to January 1, 2023.

K-GmbH concluded a heat supply contract with the condominium owners' association of the property in question on July 17, 2002 and July 18, 2002. The heat supply system on the property has been operated by K-GmbH since then. K-GmbH provides the co-participating party with the annual total consumption statements. There are also individual heat supply contracts between the apartment owners and i-GmbH. The co-participating party concluded an agreement on order processing with i-GmbH on May 28, 2018 and, according to a "service contract" concluded with the co-participating party on February 3, 2009, i-GmbH takes over the annual reading of the consumption recording devices and billing of heating, hot water and cold water costs as well as any additional costs for the property.

There are three meters in each of the apartments in the property; one for heating, one for hot water and one for cold water. On December 31st of each year, all of these meters in the individual apartments send the respective annual consumption to i-GmbH via radio.

In the period from February to March of the following year, the participating party forwarded to i-GmbH all invoices that were incurred for these items in the year in question, including the invoices from K-GmbH for the entire heat preparation.

In addition to the invoices, the participating party sent i-GmbH a cost statement each year showing the costs incurred for the entire house for heating, hot water preparation, cold water and the associated special costs.

Since the heat and cold water meter of the complaining parties had been out of calibration since the 2018 billing period and the complaining parties refused access to the apartment on January 3, 2021, so that it was not possible for i-GmbH to record (read) the consumption values, i-GmbH carried out an extrapolation of the consumption.

Based on the meter data or the extrapolation and the submitted cost statement including invoices, i-GmbH then prepared a total invoice for the property to the co-participating party and also an individual invoice for each of the apartments.

In doing so, it divided the total costs invoiced by K-GmbH between the individual apartments based on the individual consumption measured by it according to an annually adjusted allocation key.

i-GmbH sent these invoices to the co-participating party from 2009 onwards. This then sent the statements annually to all apartment owners, including the complaining parties.

2. Assessment of evidence:

The findings arise from the administrative act and the court act in question here, in particular from the decisions of the Floridsdorf District Court of October 19, 2018, GZ XXXX Msch XXXX and November 30, 2021, GZ XXXX Msch XXXX , the substantive decision of the Regional Court for Civil Matters XXXX of September 23, 2019, Zl. XXXX R XXXX and the decision of the XXXX for housing law matters of February 11, 2022, Zl. XXXX . The relevant investigation results and documents are contained in the administrative files submitted by the authority concerned. The authority concerned carried out a flawless, proper investigation procedure and correctly established the relevant facts in the grounds for the contested decision in accordance with the file. The inclusion of further evidence, as requested by the complaining parties in their statement of July 19, 2023, was therefore not necessary. The facts relevant to the decision have thus been established. The findings arise from the administrative act and the court act at issue here, in particular from the decisions of the Floridsdorf District Court of October 19, 2018, GZ roman 40 Msch roman 40 and November 30, 2021, GZ roman 40 Msch roman 40 , the substantive decision of the Regional Court for Civil Matters roman 40 of September 23, 2019, Zl. roman 40 R roman 40 and the decision of the roman 40 for housing law matters of February 11, 2022, Zl. roman 40 . The relevant investigation results and documents are contained in the administrative files submitted by the authority concerned. The authority concerned carried out a flawless, proper investigation procedure and correctly determined the relevant facts in the reasoning for the contested decision in accordance with the file. The inclusion of further evidence, as requested by the complaining parties in their statement of July 19, 2023, was therefore not necessary. The facts relevant to the decision are thus established.

3. Legal assessment:

Re A)

3.1. According to Article 130, Paragraph 1, Item 1 of the Federal Constitutional Court Act, the administrative courts rule on complaints against the decision of an administrative authority on the grounds of illegality. 3.1. According to Article 130, Paragraph 1, Item 1 of the Federal Constitutional Court Act, the administrative courts rule on complaints against the decision of an administrative authority on the grounds of illegality.

According to Section 6 of the Federal Administrative Court Act, the Federal Administrative Court decides by single judges, unless federal or state laws provide for a decision by senates. According to Section 27 of the Data Protection Act (DSG) as amended, the Federal Administrative Court decides in proceedings on complaints against decisions due to violation of the obligation to inform pursuant to Section 24, Paragraph 7 and the obligation of the data protection authority to decide by senate. The Senate consists of a chairperson and one expert lay judge from the circle of employers and one from the circle of employees. According to Paragraph 6 of the Federal Administrative Court Act (BVwGG), the Federal Administrative Court decides by a single judge, unless federal or state laws provide for decisions by senates. According to Paragraph 27 of the Data Protection Act (DSG) as amended, the Federal Administrative Court decides by senate in proceedings on complaints against decisions due to violations of the duty to inform pursuant to Paragraph 24, Paragraph 7 and the data protection authority's duty to decide. The Senate consists of a chairperson and one expert lay judge from the circle of employers and one from the circle of employees.

The procedure of the administrative courts with the exception of the Federal Finance Court is regulated by the VwGVG, Federal Law Gazette I 2013/33 as amended by Federal Law Gazette I 2013/122 (§ 1 leg.cit.). According to Section 58, Paragraph 2 of the Administrative Court Act (VwGVG), conflicting provisions that were already published at the time this federal law came into force remain in force. The procedure of the administrative courts, with the exception of the Federal Finance Court, is regulated by the Administrative Court Act (VwGVG), Federal Law Gazette Roman one 2013/33 in the version of Federal Law Gazette Roman one 2013/122 (Paragraph one, leg.cit.). According to Paragraph 58, Paragraph 2 of the Administrative Court Act (VwGVG), conflicting provisions that were already published at the time this federal law came into force remain in force.

According to Section 17 of the Administrative Court Act, unless otherwise provided for in this federal law, the provisions of the Administrative Court Act, with the exception of Sections 1 to 5 and Part IV, the provisions of the Federal Fiscal Code – BAO, Federal Law Gazette No. 194/1961, the Agricultural Procedure Act – AgrVG, Federal Law Gazette No. 173/1950, and the Civil Service Procedure Act 1984 – DVG, Federal Law Gazette No. 29/1984, and, in addition, those procedural provisions in federal or state laws that the authority applied or should have applied in the proceedings preceding the proceedings before the administrative court, shall apply mutatis mutandis to the proceedings on complaints pursuant to Article 130, Paragraph 1 of the Administrative Court Act.According to Section 17 of the Administrative Court Act, unless otherwise provided for in this federal law, the provisions of the Administrative Court Act, with the exception of Sections 1 to 5 and Part IV, the provisions of the Federal Fiscal Code – BAO, Federal Law Gazette No. 194/1961, the Agricultural Procedure Act – AgrVG, Federal Law Gazette No. 173/1950, and the Civil Service Procedure Act 1984 – DVG, Federal Law Gazette No. 29/1984, and, in addition, those procedural provisions in federal or state laws that the authority applied or should have applied in the proceedings preceding the proceedings before the administrative court, shall apply mutatis mutandis to the proceedings on complaints pursuant to Article 130, Paragraph 1 of the Administrative Court Act. one to 5 and Roman IV, the provisions of the Federal Fiscal Code - BAO, Federal Law Gazette No. 194 of 1961, the Agricultural Procedure Act - AgrVG, Federal Law Gazette No. 173 of 1950, and the Civil Service Procedure Act 1984 - DVG, Federal Law Gazette No. 29 of 1984, and in addition those procedural provisions in federal or state laws that the authority applied or should have applied in the proceedings preceding the proceedings before the administrative court are to be applied mutatis mutandis.

According to Section 28 Paragraph 1 VwGVG, the administrative court must settle the legal matter by decision, unless the appeal is to be rejected or the proceedings are to be discontinued. According to Paragraph 28, Paragraph one, VwGVG, the administrative court must settle the legal matter by decision, unless the appeal is to be rejected or the proceedings are to be discontinued.

According to Section 28 Paragraph 2 VwGVG, the administrative court must decide on the merits of complaints pursuant to Article 130 Paragraph 1 Item 1 B-VG if (1.) the relevant facts are established or (2.) the determination of the relevant facts by the administrative court itself is in the interest of speed or is associated with significant cost savings. According to Paragraph 28, Paragraph 2, VwGVG, the administrative court must decide on the merits of complaints pursuant to Article 130, Paragraph one, Item one, B-VG if (1.) the relevant facts are established or (2.) the determination of the relevant facts by the administrative court itself is in the interest of speed or is associated with significant cost savings.

3.2. On the procedural requirements:

The complaint was filed within the time limit pursuant to Section 7 Paragraph 4 VwGVG and the other procedural requirements are also met. The complaint was filed within the deadline in accordance with paragraph 7, paragraph 4, VwGVG and the other procedural requirements are also met.

3.3. Legal situation:

Article 4, points 1, 2 and 7 of the GDPR read: Article 4, point one, 2 and 7 of the GDPR read:

"Article 4

Definitions

For the purposes of this regulation, the following terms shall apply:

1. "Personal data" means any information relating to an identified or identifiable natural person (hereinafter "data subject"); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

2. "Processing" means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

7. "Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of processing personal data; where the purposes and means of such processing are specified by Union or Member State law, the controller or the specific criteria for his or her nomination may be provided for by Union or Member State law;"

Art.16 GDPR states: Article 16, GDPR states:

"Article 16

Right to rectification

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement."

3.4. Applied to the specific case, this means the following:

First of all, it should be noted that according to the case law of the VwGH, the "matter" of the appeal procedure, regardless of the scope of review specified by Section 27 VwGVG, is in any case only the matter that formed the content of the ruling of the administrative authority sued before the VwG (VwGH 13.12.2018, Ra 2018/11/0200, JusGuide 2019/10/5532).First of all, it should be noted that according to the case law of the VwGH, the "matter" of the appeal procedure, regardless of the scope of review specified by Section 27 VwGVG, is in any case only the matter that formed the content of the ruling of the administrative authority sued before the VwG (VwGH 13.12.2018, Ra 2018/11/0200, JusGuide 2019/10/5532).

The complainant initially stated in a submission dated July 26, 2021 to the authority concerned that the proceedings should be based on his complaint of September 16, 2020, in which he claims a violation of the right to rectification and states that if the billing is correct (i.e. based on actually measured consumption values), there would be a credit of € 614.42 for 2018 and € 1,320.59 for 2019, whereas the individual billings submitted for both years show a back payment of € 1,941.83 and € 1,073.73 respectively.

As a result of an order to rectify the defects from the authority concerned, the complainant submitted "the complaint again" on September 20, 2021 (dated August 23, 2021) along with a request for correction dated July 21, 2021 and the individual invoice to be corrected (individual invoice dated June 14, 2021 for the billing period January 1-December 31, 2020).

With the contested decision, the authority concerned (only) decided whether the co-participating party had violated the complainants' right to rectification pursuant to Art. 16 GDPR with regard to the individual invoice dated June 14, 2021 from i-GmbH for the billing period from January 1, 2020 to December 31, 2020, because the consumption values had been extrapolated and the co-participating party had processed the consumption data incorrectly, so that in any case only this matter is also the subject of the appeal proceedings before the Federal Administrative Court. With the contested decision, the authority concerned (only) agreed on whether the co-participating party had violated the complainants' right to rectification under Article 16 of the GDPR with regard to the individual invoice dated June 14, 2021 from i-GmbH for the billing period from January 1, 2020 to December 31, 2020, because the consumption values had been extrapolated and the co-participating party had processed the consumption data incorrectly, so that in any case only this matter is also a matter for the appeal proceedings before the Federal Administrative Court.

In this regard, it should be noted in advance that the consumption data of the complainant and his wife in question are personal data within the meaning of Art. 4 Z 1 GDPR, especially since they are information that can be attributed to the complainant (cf. Hödl in Knyrim, DatKomm Art 4 GDPR Rz 8 et seq. [as of February 2019, rdb.at]; see also Klar/Kühling in Kühling/Buchner, DS-GVO4 Art 4 No. 1 Rz 4, according to which, insofar as information about a group of people "impacts" on an identified or identifiable member, the information is personal data). This fact was not disputed by the parties, nor was the fact that this personal data was processed within the meaning of Article 4(2) GDPR. It should be noted in advance that the consumption data of the complainant and his wife in question are personal data within the meaning of Article 4(1) GDPR, especially since they are information that can be attributed to the complainant (cf. Hödl in Knyrim, DatKomm Article 4, GDPR para. 8 et seq. [as of February 2019, rdb.at]; see also Klar/Kühling in Kühling/Buchner, GDPR4 Article 4, No. 1 para. 4, according to which, insofar as information about a group of people "impacts" an identified or identifiable member, the information is personal data). This fact was not disputed by the parties, nor was the fact that this personal data was processed within the meaning of Article 4, Section 2, GDPR.

On the status of the responsible party:

According to Article 4, Section 7, GDPR, the "responsible party" is the natural or legal person, public authority, institution or other body that alone or jointly with others decides on the purposes and means of processing personal data.According to Article 4, Section 7, GDPR, the "responsible party" is the natural or legal person, public authority, institution or other body that alone or jointly with others decides on the purposes and means of processing personal data.

The responsible party is the person or body that has to ensure that the data protection provisions of the GDPR are complied with. The responsible party is therefore the addressee of the obligations arising from the GDPR and the term is used to assign responsibilities [...]. The responsible party is the addressee of claims from the data subject and is the contact point for measures taken by the supervisory authority [...]. The definition of the controller - the person or body that decides on the purpose(s) and means of processing - is usually a functionalist view, according to which responsibility is assigned based on the actual influence on the decision. The means does not just mean the technical and organizational methods, but the "how" of the processing. This means decisions about how and which data is processed, to whom it is transmitted or when it is deleted. Responsibility can also arise from the factual anticipation of the decision. If an actor actually and de facto makes the decision to start data processing, he or she is to be regarded as the controller within the meaning of the GDPR. The decisive factor is who decides and not who decides lawfully. For example, a processor can become a controller if, without being authorized to do so, he or she determines the purposes and means of processing himself or herself (Hödl in Knyrim, DatKomm Art 4 DSGVO Rz 77ff. [as of 1.12.2018, rdb.at]). The controller is the person or institution that has to ensure that the data protection provisions of the GDPR are complied with. The controller is therefore the addressee of the obligations arising from the GDPR and the term is used to assign responsibilities […]. The controller is the addressee of claims of the data subject and is the point of contact for measures taken by the supervisory authority […]. The definition of the controller - as the person or body that decides on the purpose(s) and means of processing - is usually a functionalist view, according to which responsibility is assigned based on the actual influence on the decision. The means refers not only to the technical and organizational methods, but also to the "how" of the processing. This means decisions about how and which data is processed, to whom it is transmitted or when it is deleted. Responsibility can also arise from the factual anticipation of the decision. If an actor actually and de facto makes the decision to start data processing, he is to be regarded as the controller within the meaning of the GDPR. The decisive factor is who decides and not who decides lawfully. For example, a processor can become the controller if he himself determines the purposes and means of processing without being authorized to do so (Hödl in Knyrim, DatKomm Article 4, GDPR Rz 77ff. [as of 1.12.2018, rdb.at]).

The ECJ has consistently held that the term "controller" is broadly defined in order to ensure effective and comprehensive protection of the data subjects (see ECJ 29.7.2019, C-40/17, Fashion ID, para. 65 et seq., with further references, in connection with an online retailer who integrated a "social plugin" from a social network on his website). Furthermore, the ECJ has stated that the term can also cover several actors involved in data processing (whereby the persons can be involved at different stages and to different extents) and that any person who influences the processing of personal data out of self-interest and thus participates in the decision on the purposes and means of data processing can be regarded as a controller (see again ECJ C-40/17, para. 67 et seq., with further references). On the other hand, persons cannot be considered responsible for upstream or downstream operations in the processing chain for which they do not determine the purposes or means (see again ECJ C-40/17, para. 74). Responsibility is limited to data processing operations for which the person concerned actually decides on the purposes and means (ECJ C-40/17, para. 85). The ECJ has consistently held that the term "responsible person" is broadly defined in order to ensure effective and comprehensive protection of the persons concerned (see ECJ 29.7.2019, C-40/17, Fashion ID, para. 65 et seq., with further references, in connection with an online retailer who has integrated a "social plugin" from a social network on his website). Furthermore, the ECJ has stated that the term can also cover several actors involved in data processing (whereby the persons may be involved at different stages and to different degrees) and that any person who influences the processing of personal data out of self-interest and thus participates in the decision on the purposes and means of data processing can be regarded as a controller (see again ECJ C-40/17, para. 67 ff, with further references). On the other hand, persons cannot be regarded as controllers for upstream or downstream operations in the processing chain for which they neither determine the purposes nor the means (see again ECJ C-40/17, para. 74). Responsibility is limited to data processing operations for which the person concerned actually decides on the purposes and means (ECJ C-40/17, para. 85).

According to the case law of the Administrative Court, the decisive factor for the qualification as (then) client (now controller) is who made the decision to process the data (cf. VwGH 18.3.2022, Ro 2020/04/0027, para. 21, mwN). According to the case law of the Administrative Court, the decisive factor for the qualification as (then) client (now controller) is who made the decision to process the data (cf. VwGH 18.3.2022, Ro 2020/04/0027, para. 21, mwN).

The European Data Protection Board (EDPB) expressly emphasizes in its guidelines that not every service provider who processes personal data in the context of providing a service is a "processor". The role of a processor does not arise from the type of entity that processes data, but from its specific activities in a given context. The type of service determines whether the processing activity amounts to processing of personal data on behalf of the controller. In practice, in cases where the service provided is not specifically directed to the processing of personal data or where such processing is not a key element of the service, the service provider may be able to independently determine the purposes and means of such processing necessary for the provision of the service. In this case, the service provider is to be considered a separate controller and not a processor. A case-by-case analysis is required to determine the degree of influence that each entity actually has in determining the purposes and means of processing (Guidelines 07/2020 on the concepts of "controller" and "processor" in the GDPR, version 2.0, adopted on 7 July 2021).

The ECJ also states in two recent decisions that the fact that the natural or legal person, public authority, institution or other body does not itself process personal data or does not itself have direct access to the personal data does not preclude it from being classified as a controller within the meaning of Art. 4 Z 7 GDPR (ECJ 05.12.2023, C-683/21, para. 35, and ECJ 07.03.2024, C-604/22, para. 69). The fact that a controller does not control the personal data received by him and disseminates it unchanged cannot have any influence on the question of whether he can be regarded as a controller (ECJ January 11, 2024, C-231/22, paras. 37 and 38, Moniteur Belge). The ECJ also states in two recent decisions that the circumstances that the natural or legal person, public authority, institution or other body does not itself process personal data or does not itself have direct access to the personal data do not exclude the possibility of it being classified as a controller within the meaning of Article 4, paragraph 7, GDPR (ECJ December 5, 2023, C-683/21, para. 35, and ECJ March 7, 2024, C-604/22, para. 69). The fact that a controller does not control the personal data received by him and disseminates it unchanged cannot have any influence on the question of whether he can be regarded as a controller (ECJ 11.01.2024, C-231/22, paras. 37 and 38, Moniteur Belge).

Against the background of these statements, however, it becomes clear that in the present case - contrary to the statements made by the authority concerned in the contested decision - the co-involved party is to be regarded as the responsible party within the meaning of Article 4, paragraph 7, GDPR:Against the background of these statements, however, it becomes clear that in the present case - contrary to the statements made by the authority concerned in the contested decision - the co-involved party is to be regarded as the responsible party within the meaning of Article 4, paragraph 7, GDPR:

In the present case, the co-involved party - as established - has commissioned i-GmbH by service contract to carry out the annual reading of the consumption recording devices and to prepare the heat, water and, if applicable, ancillary costs invoices for the property in question. The concluded service contract includes, among other things: the scope of services (reading and billing of heating costs, hot water costs, cold water costs and ancillary costs), the data required for billing, and the services of i-GmbH (reading and visual inspection, if necessary adjustment and re-sealing of consumption recording devices, recording of consumption data and consumption determination, preparation of an annual heating and hot water cost bill, etc.). The party involved has therefore influenced the decision on the purposes and means of processing in its own interest in accordance with the ECJ case law cited above. It does not matter that i-GmbH offers or has offered a predetermined service with the service contract, especially since the co-participating party has made the final decision to actively approve the type and manner of processing (see again Guidelines 07/2020 on the terms “controller” and “processor” in the GDPR of the EDSA, version 2.0, adopted on July 7, 2021, paragraph 84). In the present case, the co-participating party has - as established - commissioned i-GmbH by service contract with the annual reading of the consumption recording devices and the preparation of the heat, water and, if applicable, ancillary costs billing for the property in question. The concluded service contract includes, among other things: the scope of services (reading and billing of heating costs, hot water costs, cold water costs and ancillary costs), the data required for billing, and the services of i-GmbH (reading and visual inspection, if necessary adjustment and re-sealing of consumption recording devices, recording of consumption data and consumption determination, preparation of an annual heating and hot water cost bill, etc.). The party involved has therefore influenced the decision on the purposes and means of processing in its own interest in accordance with the ECJ case law cited above. It does not hurt that i-GmbH offers or has offered a predetermined service with the service contract, especially since the party involved has made the final decision to actively approve the type and manner of processing (see again the Guidelines 07/2020 on the terms "controller" and "processor" in the GDPR of the EDSA, version 2.0, adopted on July 7, 2021, para. 84).

The co-involved party has also concluded an agreement with i-GmbH on order processing in accordance with Art. 28 GDPR, from which it follows that i-GmbH is bound by the instructions of the client (the co-involved party) with regard to the type and category of personal data transmitted to it, the purposes for which the personal data may be used, and the recipients of the personal data.The co-involved party has also concluded an agreement with i-GmbH on order processing in accordance with Article 28 GDPR, from which it follows that i-GmbH is bound by the instructions of the client (the co-involved party) with regard to the type and category of personal data transmitted to it, the purposes for which the personal data may be used, and the recipients of the personal data.

Contrary to the statements of the authority concerned, according to the case law of the ECJ, it does not cause any harm that the party involved does not prepare the heating cost bills itself and cannot amend or correct the individual invoices because it does not itself carry out any processing operations concerning personal data in connection with the billing (see again ECJ 05.12.2023, C-683/21 and ECJ 07.03.2024, C-604/22). It is equally irrelevant that, due to the existing individual heat supply contracts, the co-participating party is not subject to an obligation to invoice within the meaning of Section 20 Paragraph 3 of the WEG. Contrary to the statements of the authority concerned, according to the case law of the ECJ, it is also of no harm that the co-participating party does not prepare the heating cost invoices itself and cannot amend or correct the individual invoices because it does not carry out any processing operations relating to personal data in connection with the invoice (cf. again ECJ 05.12.2023, C-683/21 and ECJ 07.03.2024, C-604/22). It is equally irrelevant that, due to the existing individual heat supply contracts, the co-participating party is not subject to an obligation to invoice within the meaning of Paragraph 20, Paragraph 3 of the WEG.

The co-participating party is therefore to be regarded in the present case as the controller of the complained data processing within the meaning of Art. 4 Z 7 GDPR. In the present case, the party involved is therefore to be regarded as the controller of the complained data processing within the meaning of Article 4, Section 7, GDPR.

On the alleged violation of the right to rectification pursuant to Art. 16 GDPR:On the alleged violation of the right to rectification pursuant to Article 16, GDPR:

The complainants dispute the individual billing of i-GmbH dated June 14, 2021 for the billing period January 1, 2020 to December 31, 2020 and, in summary, argue that the consumption values were unlawfully extrapolated and that the party involved processed the consumption data incorrectly.

According to Art. 16 GDPR, the data subject has the right to request that the controller immediately rectify any inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject has the right to request that incomplete personal data be completed - also by means of a supplementary declaration. The right to rectification under Art. 16 is intended to enable the data subject to correct inaccurate data that the controller processes lawfully (Haidinger in Knyrim, DatKomm Art. 17 DSGVO Rz 1 [as of December 1, 2021, rdb.at]). The data subject's request must contain sufficient justification as to why the data is incorrect and how it should be worded correctly (BVwG November 13, 2020, W274 2234946-1; BVwG April 15, 2020, W211 2215821-1; BVwG March 18, 2019, W211 2208247-1). According to Article 16, GDPR, the data subject has the right to request the controller to immediately rectify inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject has the right to request the completion of incomplete personal data - also by means of a supplementary statement. The right to rectification pursuant to Article 16 is intended to enable the data subject to correct inaccurate data that the controller processes lawfully (Haidinger in Knyrim, DatKomm Article 17, GDPR Rz 1 [as of December 1, 2021, rdb.at]). The data subject's request must contain sufficient justification as to why the data is incorrect and how it should be corrected (BVwG November 13, 2020, W274 2234946-1; BVwG April 15, 2020, W211 2215821-1; BVwG March 18, 2019, W211 2208247-1).

According to Section 11 Paragraph 1 and 2a of the Heating Act, the (heat) supplier or a company specifically geared towards this is responsible for determining the consumption shares.According to Section 11 Paragraph 1 and 2a of the Heating Act, the (heat) supplier or a company specifically geared towards this is responsible for determining the consumption shares.According to Section 11 Paragraph 1 and 2a of the Heating Act, the (heat) supplier or a company specifically geared towards this is responsible for determining the consumption shares.

According to Section 24 of the Heating Act, if a customer does not raise any written, substantiated objections to the properly submitted invoice within six months of the invoice being issued at the latest, the invoice is deemed to be approved in the relationship between the customer and the supplier.According to Section 24 of the Heating Act, if a customer does not raise any written, substantiated objections to the properly submitted invoice within six months of the invoice being issued at the latest, the invoice is deemed to be approved in the relationship between the customer and the supplier.

According to Section 25, Paragraph 1, Item 2 of the Heating Act, the district court responsible for civil law matters in whose district the building is located decides on applications to review the correctness of the content of the bill (Sections 17 to 20, 22, Paragraphs 1 and 3).According to Paragraph 25, Paragraph 1, Item 2 of the Heating Act, the district court responsible for civil law matters in whose district the building is located decides on applications to review the correctness of the content of the bill (Sections 17 to 20, 22, Paragraphs 1 and 3).

The HeizKG therefore contains conclusive provisions on a separate procedure for correcting the determined consumption shares, so that this material law is to be regarded as a lex specialis to the data protection regulation of Art. 16 GDPR (Haidinger in Knyrim, DatKomm Art 17 DSGVO Rz 90 [as of 1.12.2021, rdb.at] with reference to OGH RIS-Justiz RS0128985, RIS-Justiz RS0112549; cf. also BVwG 29.11.2022, W245 2246670-1). The HeizKG therefore contains final provisions on a separate procedure for correcting the determined consumption shares, so that this material law is to be regarded as a lex specialis to the data protection regulation of Article 16, GDPR (Haidinger in Knyrim, DatKomm Article 17, GDPR Rz 90 [as of December 1, 2021, rdb.at] with reference to OGH RIS-Justiz RS0128985, RIS-Justiz RS0112549; see also BVwG November 29, 2022, W245 2246670-1).

This means that in the present case, the complainants must assert the alleged inaccuracy of the individual billing in the procedure provided for in Section 25 HeizKG, which means that according to Section 25 Paragraph 1 Item 2 HeizKG, the responsible district court (or the upstream arbitration board), but not the data protection authority, has to clarify this question. A data protection complaint pursuant to Section 24 DSG or Article 77 GDPR can under no circumstances serve to circumvent the specific procedure provided for in the Material Law; rather, the complainants must be informed that such violations of law cannot be asserted and dealt with on the occasion of a data protection procedure (as is the case here), especially since the HeizKG provides sufficient legal protection for complaints about individual bills. In this regard, it should also be noted in particular that the complained individual bill was already the subject of the decision of the XXXX for housing law matters of February 11, 2022, No. XXXX , whereby the arbitration board, among other things under ruling point V, rejected the complainants' applications pursuant to Section 25 Para. 1 No. 2 and 8 HeizKG for correction of the determined consumption shares, the total heating and hot water costs and the cost shares, so that for this reason alone there is no room for a correction pursuant to Art. 16 GDPR by the authority concerned. This means that in the present case, the complainants must assert the alleged inaccuracy of the individual billing in the procedure provided for in Section 25 of the Heating Act, which means that according to Section 25, Paragraph 1, Item 2 of the Heating Act, the responsible district court (or the upstream arbitration board) must clarify this question, but not the data protection authority. A data protection complaint according to Section 24 of the Data Protection Act or Article 77 of the GDPR can under no circumstances be used to circumvent the specific procedure provided for in the Material Law; rather, the complainants must be informed that such violations of law cannot be asserted and dealt with on the occasion of a data protection procedure (such as the one at issue here), especially since the Heating Act provides sufficient legal protection for complaints about individual billing. In this regard, it should also be noted in particular that the individual billing complained of was already the subject of the decision of the roman 40 for housing law matters of February 11, 2022, no. roman 40, whereby the arbitration board, among other things under ruling point roman five, rejected the complainants' applications pursuant to paragraph 25, paragraph one, numbers 2 and 8 of the Heating Act to correct the determined consumption shares, the total heating and hot water costs and the cost shares, so that for this reason alone there is no room for a correction pursuant to Article 16, GDPR by the authority concerned.

The alleged illegality of the decision therefore does not exist. The proceedings also did not reveal that the decision was illegal for other reasons not asserted. Since the contested decision is therefore not illegal within the meaning of Art. 130 Para. 1 Z 1 B-VG, the complaint had to be dismissed. The alleged illegality of the decision therefore does not exist. The proceedings also did not reveal that the decision was unlawful for other reasons that were not asserted. Since the contested decision is therefore not unlawful within the meaning of Article 130, Paragraph 1, Item 1, B-VG, the appeal was dismissed.

3.5. According to Section 24, Paragraph 4, VwGVG, an oral hearing was not necessary. In the present case, the oral discussion does not lead to any further clarification of the legal matter. The need to hold a hearing is also not apparent with regard to Article 6, Paragraph 1, ECHR and Article 47, GRC. The facts relevant to the decision have been clarified here. According to the case law of the ECtHR, an oral hearing is not required to resolve legal questions. The ECHR and GRC do not prevent an oral hearing from being held here. 3.5. According to Section 24, Paragraph 4, VwGVG, an oral hearing was not necessary. In the present case, the oral discussion does not lead to any further clarification of the legal matter. The need to hold a hearing is also not apparent with regard to Article 6, paragraph one, ECHR and Article 47, CFR. The facts relevant to the decision have been clarified here. In accordance with the case law of the ECHR, an oral hearing is not required to resolve legal questions. The ECHR and CFR do not prevent an oral hearing from being held here.

On B) Inadmissibility of the appeal:

According to Section 25a, paragraph 1 VwGG, the administrative court must state in its ruling or decision whether the appeal is admissible in accordance with Article 133, paragraph 4 B-VG. The ruling must be briefly justified. According to Section 25a, paragraph one, VwGG, the administrative court must state in its ruling or decision whether the appeal is admissible in accordance with Article 133, paragraph 4 B-VG. The ruling must be briefly justified.

The appeal is not admissible according to Article 133, Paragraph 4 of the Federal Constitutional Law because the decision does not depend on the solution of a legal question that is of fundamental importance. The decision in question does not deviate from the previous case law of the Administrative Court, nor is there any case law missing; furthermore, the current case law of the Administrative Court cannot be judged as inconsistent. There are also no other indications of the fundamental importance of the legal question to be resolved.The appeal is not admissible according to Article 133, Paragraph 4 of the Federal Constitutional Law because the decision does not depend on the solution of a legal question that is of fundamental importance. The decision in question does not deviate from the previous case law of the Administrative Court, nor is there any case law missing; furthermore, the current case law of the Administrative Court cannot be judged as inconsistent. There are also no other indications of the fundamental importance of the legal question to be resolved.