VG Köln - 13 L 1707/21

VG Köln - 13 L 1707/21
Court:	VG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(2) GDPR Article 58(2) GDPR
Decided:	10.11.2021
Published:
Parties:	Bundesbeauftragter für den Datenschutz und die Informationsfreiheit (Germany) Job Centre in the district of Diepholz
National Case Number/Name:	13 L 1707/21
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	NRW-Justiz (in German)
Initial Contributor:	n/a

The Administrative Court of Köln held that the appointment or dismissal of a data protection officer does not constitute processing of personal data under Article 4(2) GDPR.

English Summary

Facts

The Job Centre of Diepholz (controller) dismissed its Data Protection Officer (DPO). The German Federal Data Protection Authority (BfDI - Bundesbeauftragter für den Datenschutz und die Informationsfreiheit) issued an immediately enforceable order against the Job Centre under Article 58(2)(d) GDPR to bring its processing into compliance with the GDPR and re-designate the dismissed DPO. The controller applied for interim relief before the Administrative Court of Köln (VG Köln - Verwaltungsgericht Köln) against this order.

Holding

The VG Köln held that there was no necessity for the BfDI to make the order immediately enforceable because the controller had already designated a new DPO. Furthermore, the court concluded that Article 58(2)(d) GDPR does not empower the DPA to order the controller to re-designate its dismissed DPO, because neither designating nor dismissing a DPO constitutes processing according to Article 4(2) GDPR

Comment

In its decision, the court considered only the list of examples laid down in Article 4(2) GDPR, although the list is not conclusive. Instead, it could have been addressed if the appointment or dismissal of a data protection officer could be seen as data processing in general.

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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.

 13 L 1707/21 of November 10, 2021
decision | Cologne Administrative Court | 13th chamber tenor
1.
It is determined that the claimant's action 13 K 5069/21 against numbers 2 and 3 of the instructional order of the respondent dated September 27, 2021 has suspensive effect.
The respondent bears the costs of the procedure.
2.
The value of the disputed item is set at €2,500.00.

In the administrative court proceedings
of the job center in the district of Diepholz, management, Amtshof 3, 28857 Syke, Gz.: 0100,
applicant, against
the Federal Commissioner for Data Protection and Freedom of Information, Graurheindorfer Straße 153, 53117 Bonn,
809 1/001#0084, respondent,
data protection law; Warning and order according to Art. 58 Para. 2 GDPR (re-appointment of the company data protection officer)
here: regulation of execution
said the 13th Chamber of the Cologne Administrative Court on November 10, 2021
through
Gz.: JUS because of
  
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12
the presiding judge of the administrative court
13 the judge at the Administrative Court
14 the judge
15 decided:
16
 17
It is established that the claim 13 K 5069/21 of the applicant against
Sections 2 and 3 of the instruction of the respondent dated 27
1 September 2021 has suspensive effect.
The respondent bears the costs of the procedure.
2. The value of the disputed item is set at €2,500.00.
The admissible - correspondingly made - application according to § 80 paragraph 5 of the Administrative Court Code (VwGO),
18 to restore the suspensive effect of the applicant's action (13 K 5069/21) against sections 2 and 3 of the instruction of the respondent of September 27, 2021,
19 succeeds in the form evident from the tenor.
20 First of all, the order for immediate enforcement is formally unlawful. In this respect, the justification for the order for immediate enforcement in the decision of the respondent dated September 27, 2021 does not meet the relevant requirements.
21 According to Section 80 (3) sentence 1 VwGO, the special interest in immediate enforcement must be justified in writing when ordering immediate enforcement. This is intended to put the person concerned in a position, knowing these reasons, to effectively exercise their rights and to assess the chances of success of the legal remedy. At the same time, the exceptional nature of the enforcement order is made clear to the authority and a particularly careful examination of the enforcement interest is imposed. This warning function is intended to prompt a careful examination of the interest in immediate execution. The person concerned will be informed of the reasons that were decisive for the official decision; he can then estimate the chances of success of a suspension application in accordance with Section 80 (5) sentence 1 VwGO. Knowledge of the administrative authority considerations for immediate enforceability allows the court to carry out proper legal control and at the same time enables the court to make its own decisions

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Parameter.
22 What is necessary for this is an explanation of the particular interest in the immediate enforceability of the administrative act, based on the circumstances of the specific case. In particular, the enforceability order must indicate that the authority is aware of the exceptional legal nature of the order. Formulaic phrases, i.e. phrases that are suitable for any situation, standard or blanket argumentation patterns or the mere repetition of the legal text are not sufficient. It is also not sufficient that the justification can only be determined from the overall context of a notification, unless, in exceptional cases, the reasons justifying the issuing of the administrative act also prove the urgency of the enforcement. Rather, the special interest in enforceability must be justified separately. It must show that and why the administration in the specific case gives priority to the immediate interest in enforceability over the interest in delay of the person concerned,
23 cf. only Schoch in: Schoch/Schneider/Bier, VwGO, 41. EL July 2021, § 80 marginal note 247 with further references.
24 Measured against these principles, the justification for the immediate execution of paragraphs 2 and 3 in the challenged directive of September 27, 2021 does not meet the requirements of Section 80 (3) sentence 1 VwGO:
25 It is sufficiently clear from the justification, which relates in detail to the abstract question of whether the supervisory authority is at all - contrary to Section 20 (7) of the Federal Data Protection Act (BDSG) - to order the immediate enforcement of an authority that the respondent of the was aware of the exceptional character of the order for immediate execution. As a result, however, no concrete circumstances of the individual case are taken into account in the reasoning. In addition, the public interest in immediate enforcement is then only emphasized unilaterally, without weighing it up against the interests of the applicant in the suspensive effect of the action. Rather, any interests of the applicant are not even mentioned.
26 According to the standards shown, this approach does not meet the requirements of Section 80 (3) sentence 1 VwGO because the parameters for the weighing of interests are not named.
27 The application for suspension was successful with the proviso that the suspensive effect of action 13 K 5069/21, insofar as numbers 2 and 3 of the instructional order of September 27, 2021 are in question, was to be determined.
 
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The result is a so-called case of "factual" enforcement, i.e. enforcement that takes place in disregard of the suspensive effect of an appeal,
29 cf. on this: W.-R. Schenke in: Kopp/Schenke, VwGO, 27th edition 2021, § 80 Rdn. 20.
30 This follows from the following:
31 Pursuant to Section 20 (7) BDSG, the supervisory authority may not order an authority or its legal entity to execute immediately in accordance with Section 80 (2) sentence 1 number 4 of the Code of Administrative Courts.
32 The Respondent nevertheless did this with regard to the primacy of application of Union law because he considered Section 20 (7) BDSG to be inapplicable.
33 It can be left open whether the concerns under European law that are asserted against the regulation of Section 20 (7) BDSG
34 cf. on this instead of many: Schoch, loc.cit., § 80 Rdn. 222a,
35 apply:
36 It is true that in the case of violations of data protection law, rapid action by the supervisory authority may sometimes be necessary to avoid irreversible consequences. In the event of a conflict, this may result in the inapplicability of the national provision for measures taken by the supervisory authority under Article 58 of the General Data Protection Regulation (GDPR),
37 Regulation No. 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data for the free movement of data and repealing Directive 95/46/EC (OJ L 119),
38 follow,
39 cf. Schoch, loc.cit.
40 However, the Respondent has not explained that such a case of conflict exists here or that rapid supervisory action is required to avoid irreversible consequences. Such a constellation is also otherwise not apparent, especially since the applicant currently has an official data protection officer (Mr. C.F.).
41 It is also important to take into account in this context that the summary examination, which is the only possible and necessary summary examination in the present summary proceedings, is likely to meet the factual requirements
   
 6 13 L 1707/21 of 10.11.2021 | rewis.io the authorization basis of § 58 para. 2 used by the opponent
lit. d) GDPR are not given anyway.
42 According to the said standard, the supervisory authority may instruct the controller or the processor to bring processing operations into line with the GDPR in a certain way and within a certain period of time, if necessary.
43 "Processing" within the meaning of the GDPR means any process carried out with or without the help of automated processes or any series of processes in connection with personal data such as collecting, recording, organizing, organizing, storing, adapting or changing, reading out, the retrieval, use, disclosure by transmission, dissemination or any other form of provision, comparison or linking, restriction, deletion or destruction, Art. 4 Para. 2 DSGVO.
44 The organization and ordering of data - which may be used as relevant - represent processes that simplify or improve the possibilities for finding and evaluating this data, for example by storing it in a file that is structured in a certain way. Ordering is a subset of the more general notion of organization; the concept of order is based on a specific criterion according to which the data is sorted (e.g. in alphabetical or numerical order).
45 cf. Kühling/Buchner/Herbst, 3rd edition 2020, GDPR Art. 4 (2) No. 23.
46 That the (dis)appointment of an official data protection officer hereunder
could fall is not evident.
47 The decision on costs is based on Section 154 (1) VwGO.
48 The determination of the amount in dispute is based on Section 53 Paragraph 2 No. 2, Section 52 Paragraph 2 GKG; it amounts to half of the value in dispute in the main matter.
49 Instructions on legal remedies
50 Complaints against Section 1 of this decision can be lodged in writing with the Cologne Administrative Court, Appellhofplatz, 50667 Cologne, within two weeks of notification.
51 Instead of in writing, the complaint can also be submitted as an electronic document in accordance with § 55a of the Administrative Court Code - VwGO - and the Ordinance on the Technical Framework Conditions for Electronic Legal Transactions and via the special electronic official mailbox (Electronic Legal Transactions Ordinance - ERVV).
    
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The complaint deadline is also met if the complaint is received within the deadline in writing or as an electronic document in accordance with § 55a VwGO and the ERVV at the Higher Administrative Court for the State of North Rhine-Westphalia, Aegidiikirchplatz 5, 48143 Münster.
  53 The appeal must be reasoned within one month of notification of the decision. If it has not already been submitted with the complaint, the justification must be submitted to the Higher Administrative Court in writing or as an electronic document in accordance with Section 55a VwGO and the ERVV. It must contain a specific request, set out the reasons why the decision is to be modified or set aside, and deal with the contested decision.
54 The parties involved must be represented by a legal representative when filing and substantiating the complaint. Attorneys at law or legal teachers at a state or state-recognized university in a member state of the European Union, another state party to the Agreement on the European Economic Area or Switzerland who are qualified to hold judicial office are authorized representatives and also employees of public authorities and legal entities or employees of other authorities or legal entities under public law who are qualified to hold judicial office. In addition, the persons who are otherwise designated in § 67 Para. 4 of the Administrative Court Code are admitted.
55 An appeal may be lodged against paragraph 2 of this decision within six months after the decision on the main matter has become final or the proceedings have otherwise been resolved. If the amount in dispute has been determined later than one month before the end of this period, it can still be filed within one month after the delivery or informal notification of the determination resolution.
56 The complaint must be submitted in writing, for the record of the clerk at the office or as an electronic document in accordance with § 55a VwGO and the ERVV at the Cologne Administrative Court, Appellhofplatz, 50667 Cologne.
57 The complaint is only admissible if the value of the object of the complaint exceeds €200.
58 The notice of appeal should be submitted in duplicate. If an electronic document is submitted, no copies are required.