OVG Lüneburg - 8 ME 36/20

OVG Lüneburg - 8 ME 36/20
Court:	OVG Lüneburg (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6 GDPR
Decided:	15.04.2020
Published:
Parties:	candidate for election to the defendant's chamber (chamber of dentists)
National Case Number/Name:	8 ME 36/20
European Case Law Identifier:	ECLI:DE:OVGNI:2020:0415
Appeal from:	VG Stade (Germany)
Appeal to:
Original Language(s):	German
Original Source:	Niedersächsisches Landesjustizportal (in German)
Initial Contributor:	n/a

On April 15th, 2020 the High Administrative Court Lüneburg (OVG Lüneburg) decided by order that there is no subjective right for candidates of the chamber meeting of the Chamber of Dentists of Lower Saxony to the transmission of the address data of the voters for the purpose of election advertising neither to the error-free exercise of discretion with regard to the transmission.

English Summary

Facts

The applicant in question is a candidate for election to the defendant's chamber (chamber of dentists) meeting in 2020. The order from the High Administrative Court was directed against the order of the Verwaltungsgericht Stade (Administrative Court Stade), which had ordered the defendant to provide the applicant without delay with the surnames, first names and postal address of the applicant's constituency in question for the purposes of election advertising. As the postal addresses that the members of the Chamber had deposited with the defendant for the purpose of postal correspondence were to be transmitted, the defendant directed its complaint precisely against this.

Dispute

In the present case, the Court had to assess whether the applicant was entitled to a claim of injunction for the transmission of the data in question.

Holding

The Court found that the applicant was not entitled to receive the surnames, first names and postal addresses of the members of the Chamber eligible to vote for his constituency from the electoral roll. Neither the relevant electoral regulations nor the principles of free and equal suffrage allow such a claim to be derived. Moreover, there is no other norm of entitlement in the context of which the applicant's interest in the promotion of his election advertising could be affected. The latter applies in particular to the data protection provisions governing the transfer of personal data by the defendant. These are not intended, according to the court, to serve the interests of the claimant, not even in the sense of a claim for error-free exercise of discretion. The regulations legitimise encroachments on the right to informational self-determination and are intended to provide the public administration with a legal basis for data processing activities and to grant the data subjects subjective rights of defence. The function as a legal basis includes cases in which the public administration decides to satisfy a legitimate interest in information of a third party even without a specific claim; data protection law can authorise this. The data protection regulations do not aim to extend the right of third parties to access information. For reasons of legal systematics, this is also reserved for technical legal standards and the right to freedom of information. The court also refers to Article 6(1)(e) GDPR, stressing that this provision does not in itself authorise data processing, but is a "hinge rule" which allows for the adoption of a permit. This is because, according to the first sentence of Article 6(3) of the GDPR, the legal basis for processing operations under this provision is determined by Union law or the law of the Member States to which the controller is subject.

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English Machine Translation of the Decision

Chamber of Dentists; Chamber meeting; Election; Election advertising; Election candidates; Electoral roll; Addresses; Address data; Election examination; Anticipation of the main issue, in addition: suspension of the execution of the decision of the VG; interim decision; suspension decision

There is no subjective right of candidates for election to the chamber meeting of the Chamber of Dentists of Lower Saxony to transfer the address data of those entitled to vote for the purpose of election advertising or to exercise error-free discretion with regard to the transfer.

OVG Lüneburg 8th Senate, resolution of 15.04.2020, 8 ME 36/20, ECLI:DE:OVGNI:2020:0415.8ME36.20.00

§ Section 50 (1) BMG, Section 49 BWahlG, Section 6 (1) S 1e EUV 2016/679, Section 17 HKG ND, Section 85a HKG ND, Section 85a (1) S 1 HKG ND, Section 5 (1) S 2 DSG ND, Section 46 (2) KomWG ND, Section 51 S 2 WahlG ND

PROCEDURE VG Stade, 3 April 2020, Ref: 6 B 522/20, decision

TENOR The order of the Administrative Court of Stade - 6th Chamber - of 3 April 2020 is amended in response to the defendant's appeal.

The application for interim relief is rejected.

The applicant shall bear the costs of the proceedings.

The value of the subject matter of the dispute is set at EUR 5000 for the appeal proceedings.

REASONS 1 The applicant is an election candidate in constituency 1 of the election to the defendant's chamber meeting to be held in 2020. Upon his application, the Administrative Court, by order of 3 April 2020, ordered the respondent to immediately provide him with the surnames, first names and postal addresses of the members of the Chamber entitled to vote in constituency 1 of the election for the Chamber meeting of the respondent for the elections to be held between 23 April 2020 and 11 May 2020 for the purpose of advertising the election. The defendant's appeal is directed against this.

2 The subject of the proceedings is exclusively a complaint by the defendant. The applicant has not lodged an appeal. In the statement of defence, he states that only the electronic transmission of the information in file form satisfies his claim and thus opposes the dismissing part of the first-instance decision. However, there is not sufficient evidence to suggest that the submission could be interpreted as an appeal by the applicant. There is no explicit mention of a complaint by the applicant, the applicant describes itself exclusively as the defendant and the application is solely intended to dismiss the defendant's complaint.

3 The defendant's admissible appeal is successful. In any event, there is no claim for an interim injunction.

4 1. however, the application is admissible In particular, it does not interfere with the priority of the election review procedure.

5 In the case of state and local elections, decisions and measures directly related to the electoral process can only be challenged by means of the legal remedies provided for in electoral and constitutional procedural law and in the election review procedure (cf. section 49 BWahlG, section 51 sentence 2 NLWG, section 46(2) NKWG). This also sets limits to the interim legal protection in the run-up to the election. In view of the need to have the election held in good time for the end of the electoral period and not to influence the date of the election by means of appeal proceedings, a transfer of these principles to elections to organs of self-governing bodies is indeed obvious (see VG Hamburg, decision of 3 December 2019 - 5 E 5549/19 -, juris nr. 6; VG Würzburg, decision of 6 May 2004 - W 6 E 04.564 -, juris nr. 17). On the other hand, there is no legal regulation. In particular, §§ 31 ff. WO-ZKN only regulate the extrajudicial election review procedure; the mention of the administrative court action in § 39 para. 2 WO-ZKN is declaratory. 6 There is no need to go into this in more detail, since the priority of the electoral examination procedure does not in any case stand in the way of the applicant's request. Decisions and measures in the aforementioned sense are those of the electoral bodies which directly serve to prepare and conduct the election. Insofar as decisions and measures of official and unofficial bodies occasionally take effect only "from outside", as it were, in an election, i.e. do not have a direct effect on the election procedure, a challenge with the electoral review procedures is ruled out (which does not mean anything for the question whether an electoral error can exist in this respect; see Schreiber, BWahlG, 8th ed. 2009, § 49 marginal no. 3 et seq., in particular 9). This is the situation here. Outside the preparation and conduct of the election, the applicant requests a service from the respondent in order to facilitate his election advertising. Admittedly, there is a connection with the election not only because of the intended purpose, but also because of the claimed use of the electoral roll. However, the application is not directed at any action by the defendant's electoral organs in particular - the information could be provided by the defendant's general administration - nor is it even indirectly a procedural step that is part of the electoral act, prepares it or determines its result.

7 (2) Whether the prohibition of anticipation of the main proceedings precludes the adoption of a provisional measure can be left open.

8 The sought interim measures definitively prejudge the main issue. A decision on the substance of the case before the end of the election period is excluded. If the applicant receives the requested data, it will also make use of them. A return in case of losing the main proceedings cannot reverse this.

9 The general prohibition of anticipating the decision on the merits of the case does not apply if a specific provision is absolutely necessary to grant effective legal protection, i.e. if the disadvantages otherwise to be expected would be unreasonable for the applicant and could no longer be eliminated in the proceedings on the merits and a high degree of probability speaks in favour of success in the main proceedings as well (see only W.-R. Schenke, in: Kopp/Schenke, VwGO, 24th ed. 2018, para. 123 marginal no. 14 with further references).

10 It can be left open whether the disadvantages for the applicant in the event of non-admission of the interim measure are unreasonable. The reasonableness of the disadvantages could result from the fact that possible infringements of rights, also by third parties in the context of election advertising, may under certain circumstances be asserted as electoral errors in the election review procedure (see e.g. BVerfG, Order of 9 May 1978 - 2 BvC 2/77 -, BVerfGE 48, 271, juris nos. 22 et seq.; Schreiber, BWahlG, 8th ed. 2009, § 49 marginal no. 9). On the other hand, it has been stated above that the election review procedure does not have priority. This does indeed concern the admissibility of the application for a temporary injunction and not the reasonableness of the disadvantages. Nevertheless, it could be an indication that the violation of the applicant's subjective right - assuming its existence - is sufficiently independent and weighty that a later success in the election challenge cannot be regarded as sufficient compensation. In the case of public services to promote election advertising in state elections, interim legal protection is regularly granted (see e.g. Niedersächsisches OVG, decision of 8 March 1994 - 10 M 1470/94 -, NVwZ 1994, 586, juris nr. 1).

11 3) In any event, there is no right to an injunction. The applicant is not entitled to have the surnames, first names and postal addresses of the members of the Chamber eligible to vote for constituency 1 taken from the electoral roll.

12 a) Such a claim does not result from the election regulations of the WO-ZKN or the HKG. In particular, § 11 para. 1 WO-ZKN only regulates the inspection of the electoral register that has been interpreted. §§ Sections 17 et seq. HKG likewise contain no relevant basis for a claim.

13 b) Nor can a claim for transmission be derived from the principles of free and equal choice. 14 These principles apply to the election to the respondent's chamber meeting (see Groß, in: Kluth, Handbuch des Kammerrechts, 2nd ed. 2011, § 7 marginal 50). They are, without being expressly mentioned, consistent with the concept of election in §§ 17 et seq. HKG. These provisions constitute the representative body of a self-governing body. This contributes to the necessary level of legitimacy of indirect state administration by forming its organs according to democratic principles. The legal provisions for autonomous decision-making must guarantee the appropriate participation of all those concerned in the decision-making process. The design of the right to vote is therefore only limited by the fact that it must be compatible with the basic idea of autonomous self-administration in line with the interests of the state on the one hand and effective public task performance on the other. Sufficient institutional precautions are required to ensure that the interests concerned are adequately taken into account and that individual interests are not given preference (cf. BVerfG, Order of 12 July 2017 - 1 BvR 2222/12 -, BVerfGE 146, 164, margin no. 121). This requires, in the starting point, compliance with the principles of free and equal choice, whereby these principles may be subject to restrictions that can be derived from the nature of the body (cf. BVerfG, Decision of 12 July 2017 - 1 BvR 2222/12 -, BVerfGE 146, 164, marginals 120 et seq.; Groß, in: Kluth, Handbuch des Kammerrechts, 2nd ed. 2011, § 7 marginals 50 et seq.)

15 From the principles of electoral law it follows first of all that election advertising may not be impaired by the authorities. The access of eligible voters to election advertising may not be hindered, nor may the advertising activities of election candidates be made more difficult. In addition, their equal opportunities must be preserved (see P. Müller, in: v. Mangoldt/Klein/Starck, GG, 7th ed. 2018, Article 38 marginal no. 144; Schreiber, BWahlG, 8th ed. 2009, § 1 marginal no. 24 et seq., 52).

16 Furthermore, freedom and equality of choice influence public administration services that are intended to promote electoral advertising. In this respect, too, there must be equal opportunities for election candidates. In addition, the interest in sufficient information for voters about the person and program of the candidates legitimates the creation of legal claims to benefits that promote election advertising. Finally, the principles of electoral law influence the exercise of discretion in the case of services provided by the public administration either on its own initiative or on the basis of a general provision that grants the applicant a subjective right to a decision free of discretionary error. However, no entitlement to benefits arises directly from the principles of freedom and equality of choice. This presupposes a statutory entitlement norm (see BVerwG, Urt. v. 11.1.1991 - 7 C 13/90 -, BVerwGE 87, 270, juris para. 8; OVG Brandenburg, decision of 24.9.1998 - 4 B 129/98 -, LKV 1999, 235; Benda, NVwZ 1994, 521, 522).

17 For example, when public broadcasters make their broadcasting facilities available to the parties for election advertising broadcasts, they must respect and uphold the parties' right to equal opportunities (BVerfG, Order of 14 February 1978 - 2 BvR 523/75 -, BVerfGE 47, 198, juris nr. 80). In contrast, a claim to the granting of broadcasting time arises only by simple statute from § 22 of the Non-Media Act (see Schreiber, BWahlG, 8th ed. 2009, § 1 marginal no. 65). Equal access to public facilities of the municipalities pursuant to § 30 NKomVG, § 5 para. 1 PartG requires a corresponding dedication. Insofar as election advertising in public street space is a special use, case law builds on the reduction of discretion during election campaigns (see Schreiber, BWahlG, 8th ed. 2009, § 1 marginal no. 79 et seq. ) builds on the claim to the faultless exercise of discretion to which each applicant is entitled in the decision on the special use permit under criminal law (see Wohlfarth, in: Haus/Krumm/Quarch, Gesamtiges Verkehrsrecht, 2nd ed. 2017, § 8 FStrG margin no. 8).

18 Even in the case of elections to representative bodies of self-governing bodies, it is not self-evident but requires a legislative decision as to whether and to what extent the election advertising of election candidates is to be promoted by the body. The assumption that the principles of electoral law oblige the respondent to provide any support desired by the election candidates is obviously out of the question. There are a variety of conceivable methods and measures of election advertising. If the defendant were obliged to promote them, this could conflict with the interests of other members to varying degrees or trigger administrative costs. The possible conflicts of interests must be resolved by the legislature. If it wants to oblige the defendant to promote election advertising at all, the granting of publication opportunities in association journals or on the Internet may also be considered. Less burdensome than the release of personal data could be the sending of advertising material of the election candidate by the corporation at his expense. If the legislator opted for the transmission of address data to election candidates, it would have to determine whether and within what limits the persons concerned could object.

19 The judgment of the OVG Nordrhein-Westfalen of 9 June 1992 (- 15 A 571/92 -, NWVBl. 1993, 70, juris nr. 27 ff.) does not say otherwise. It only states that a statutory provision ordering the handing over of a list of addresses (here § 13.2 HeilBerG NW) can be lawfully enacted, but not that it is required by the principles of electoral law.

20 (c) There is no other claim norm that could affect the applicant's interest in promoting his or her election advertising.

21 This applies in particular to the data protection provisions governing the transfer of personal data by the defendant. They are not also intended to serve the interests of the claimant, not even in the sense of a claim to error-free exercise of discretion. These regulations legitimise encroachments on the right to informational self-determination. They are intended to provide the public administration with a legal basis for data processing activities and to grant the data subjects subjective rights of defence. The function as a legal basis includes cases in which the public administration decides to satisfy a justified interest in information of a third party even without a specific claim; data protection law can authorise this. The data protection regulations do not aim to extend the right of third parties to access information. For reasons of legal systematics, this is also reserved for technical legal standards and the right to freedom of information.

22 Section 85a of the HKG is also a sector-specific data protection authorisation norm. § Section 85a (1) sentence 2, (2) to (5) HKG are not relevant in terms of their content alone. Pursuant to Section 85a, Paragraph 1, Sentence 1 HKG, the Chamber may process personal data to the extent that this is necessary to fulfil its statutory duties. This does not confer any subjective right on the applicant. According to the wording, no provision is made for preferential treatment of third parties, in particular of non-public bodies. Nothing else results from the system and purpose; the considerations just described apply in this respect. The legal materials (LT-Drs. 15/355, p. 21) do not even mention the transmission, but point out that the processing also includes the collection and use. In any case, they do not indicate an intention to grant a right to third parties. For this reason, the decision of the Administrative Court cannot be followed for reasons explained by the respondent, which is why the Higher Administrative Court must make a comprehensive decision on the applicant's application (§ 146.4 sentence 6 of the Rules of the Administrative Courts (VwGO)). 23 Moreover, there would be no right to transmission, even if Paragraph 85a(1)(1) of the HKG granted third parties a subjective right to exercise their discretion without error. For the discretion is in any event not reduced to zero. However, the interest in effective election advertising that reaches the circle of those entitled to vote as fully as possible carries considerable weight. This interest could legitimise in principle a statutory provision which granted a right to be informed of the contents of the electoral roll, although it does not enforce it. The opposing interest in informational self-determination is not, however, of such little weight that any decision other than the transmission of the data would be discretionary. It is true that the defendant's data subjects must expect that their personal data will be processed for their purposes. However, disclosure to a larger number of other members, also within the framework of a data protection law-related purpose limitation, has a completely different quality than processing by the respondent itself or the knowledge gained by inspecting the electoral register pursuant to Section 11 (1) WO-ZKN. The existence of serious conflicting interests distinguishes the present constellation, for example, from the reduction of discretionary powers with regard to the visual election advertising in public street space.

24 § Section 5 of HKG is not relevant.

25 Nor does Section 5 (1) sentence 2 NDSG grant the applicant any subjective right. According to this provision, the transfer of personal data to a non-public body is permissible, provided that

26 1. it is necessary for the fulfilment of the tasks of the transferring body and the data have been collected for the purpose for which they were collected or the conditions for a change of purpose are fulfilled, or

27 2. the receiving body substantiates a legitimate interest in knowledge of the data to be transmitted and there is no reason to assume that the data subject's legitimate interest in confidentiality outweighs the data subject's legitimate interest in confidentiality.

28 In this respect too, the statements on the purpose of the data protection authorisation standards apply. In particular, it is not to be assumed that within the framework of the NDSG a general transmission claim should be created for every sufficiently important legitimate interest of any kind whatsoever. Nor does this result from the legislative materials (cf. LT-Drs. 18/901, p. 4). Rather, the provision covers the action of the authorities if the public administration fulfils a claim existing elsewhere or decides to transfer data without a legal obligation to do so; only the data subject is entitled to compliance with the requirements of data protection law.

29 Art. 6 para. 1 subpara. 1 letter e) DSGVO does not authorise data processing on its own initiative, but is a "hinge norm" which enables the enactment of an authorisation offence (cf. Roßnagel, in: Simitis/Hornung/Spiecker, Datenschutzrecht, 2019, Art. 6 para. 1 DSGVO marginals 68, 70). For pursuant to Article 6.3 sentence 1 of the DSGVO, the legal basis for processing operations under this provision is laid down by Union law or by the law of the Member States to which the controller is subject.

30 d) The right under association law to the provision of a list of members in the case of a legitimate interest (see Federal Court of Justice (BGH), Order of 25 October 2010 - II ZR 219/09 -, ZIP 2010, 2399) is not transferable to compulsory public law bodies such as the respondent (see Bayerischer VGH, Order of 5 October 1998 - 21 ZE 98.2707, 21 CE 98.2707 -, juris para. 13).

31 e) The fact that there is no basis for claiming the data requested by the applicant does not mean that there is an unplanned regulatory gap. This would only be the case if a settlement could be expected on the basis of the regulatory plan of the Act or higher-ranking law. In view of the interests contrary to the interests of the election candidates, this is not the case. It is equally possible to provide no basis for a claim at all. Moreover, it is not apparent which provision should be used to fill the alleged gap by analogy. In particular, § 50.1 of the Federal Ministry of Health cannot be inferred from § 50.1 of the Federal Constitution (BMG) any legal concept that extends beyond state elections and is capable of generalisation (see Bayerischer VGH, decision of 5 October 1998 - 21 ZE 98.2707, 21 CE 98.2707 -, juris para. 14).

32 (f) Even if, contrary to the foregoing considerations, it was intended to derive directly from the principles of freedom and equality of choice any requirements for the defendant's performance, the applicant would not be entitled to the requested transfer of the address data.

33 As explained above (b)), there is a wide range of possible decisions on whether and how to promote election advertising. If an obligation on the part of the respondent was derived directly from the principles of electoral law, this obligation could only consist in the sense of the prohibition of undersize, i.e. that the respondent does not fall below the minimum necessary level of promotion of election advertising.

34 That requirement would be satisfied if, contrary to the view of the Court of First Instance, it were to be imposed. A minimum level of promotion of election advertising is ensured by linking the internet presentations of the election candidates to the defendant's website. In particular, this measure has a far from negligible broad effect because the Internet is used by broad sections of the population as a source of information. The applicant's argument that there was still enough time for postal election advertising, but not for the creation and linking of a website, is not understandable and will not be carried out.

35 The decision on costs is based on Section 154(1) of the VwGO.

36 The determination of the amount in dispute is based on § 47.1, § 53.2 no. 1, § 52.2 GKG.

37 This decision is unappealable (§ 152, Subsection 1, VwGO, § 68, Subsection 1, Sentence 5, § 66, Subsection 3, Sentence 3, GKG).