VGH München - 5 BV 20.2104

VGH München - 5 BV 20.2104
Court:	VGH München (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 2(2)(d) GDPR Article 6(1)(e) GDPR
Decided:	30.05.2023
Published:
Parties:
National Case Number/Name:	5 BV 20.2104
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	VGH München (in German)
Initial Contributor:	mg

In a case of video surveillance, the fact that the protection of public property by a municipality could overlap with the prevention of crime does not exclude the applicability of the GDPR pursuant to Article 2(2)(d). Article 79 GDPR does not explicitly limit judicial remedies to the rights enshrined in Chapter III of the GDPR.

English Summary

Facts

Following several episodes of vandalism, the city council of Regensburg installed surveillance cameras in a communal garden where migrants and marginalised groups of people usually spent their time.

The data subject, who usually passed through that area, asked the Administrative Court of Regensburg to order the police to stop recording and remove the cameras.

The court of first instance held that the case at issue did not fall within the scope of Directive (EU) 2016/680 (Law Enforcement Directive), but rather of the GDPR. Indeed, the exception under Article 2(2)(d) GDPR did not apply, since the controller was not a law enforcement agency acting with the aim to protect public security.

The court also found that the data subject could not rely on injunctive relief against the unlawful processing pursuant to the German Civil Code. According to the judges, Article 79(1) GDPR provides data subject with a legal remedy that is only applicable to violations of Articles 13-23 GDPR individually affecting the data subject.

Finally, the court found that the monitoring was in any case lawful, as it was based on a public interest pursuant to Article 6(1)(e) GDPR, namely the protection of public property from vandalism.

The data subject appealed the judgement before the Superior Administrative Court of Munich (Verwaltungsgerichtshof München).

Holding

At the outset, the court clarified that the protection of public property by a municipality does not trigger Article 2(2)(d) GDPR, as it cannot be considered an activity carried out in the context of the fight against crime. Therefore, the GDPR – and not the Law Enforcement Directive – was applicable. The fact that such a purpose could partially overlap with the prevention of crime was not deemed sufficient by the court to rule out the applicability of the GDPR.

However, the court of appeal stressed that Article 79 GDPR does not explicitly limit judicial remedies to the rights enshrined in Chapter III of the regulation. Therefore, an injunctive relief prohibiting specific unlawful processing activities can be asked to a judicial authority under national law.

In the present case, the court declared video surveillance unlawful because unnecessary. According to the court, the data subject’s rights outweighed the public interest of the controller.

In light of the above, the court ordered the controller to stop the processing.

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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.

Title:
Lawsuit for the omission of data processing, video surveillance of a local recreation area, right to informational self-determination, interests of people seeking relaxation, risk forecast, damage caused by vandalism, proportionality
chains of standards:
EU-GRC Art. 8 Para. 1, Para. 2 Sentence 1
TFEU Article 16
GG Art. 2 Para. 1 and Art. 1 Para. 1
BGB § 1004 paragraph 1 sentence 2 analogous
GDPR Art. 2 Para. 2 Letter d, 4 No. 1, 6 Para. 1 Letter e, 79 Para. 1
BayDSG Art. 24 Para. 1 No. 1 and No. 2, 28
Guiding principles:
1. Video surveillance of a municipal facility pursuant to Art. 24 Para. 1 BayDSG is not a measure for criminal prosecution or to avert danger within the meaning of Art. 2 Para. 2 Letter d GDPR. The data protection directive for justice and home affairs (RL EU 2016/680 - so-called JI directive) is not relevant for this.
2. Art. 79 (1) GDPR does not exclude an action for an injunction by data subjects analogous to Section 1004 (1) sentence 2 BGB in conjunction with Art. 2 (1) and Art. 1 (1) GG against unlawful processing of their data.
tags:
Lawsuit for the omission of data processing, video surveillance of a local recreation area, right to informational self-determination, interests of people seeking relaxation, risk forecast, damage caused by vandalism, proportionality
Lower court:
VG Regensburg, court decision of 06.08.2020 - RN 9 K 19.1061
Source:
BeckRS 2023, 12517


tenor

I. The court decision of the Bavarian Administrative Court of Regensburg dated August 6, 2020 is revoked. The defendant is obliged to refrain from video observation and recording of video images of the plaintiff in the P.K.garten.

II. The defendant bears the costs of the proceedings of both instances.

III. The judgment is provisionally enforceable with regard to the cost decision. The defendant may avert enforcement by providing security or depositing the amount to be enforced if the plaintiff does not provide security in the same amount beforehand.

IV. The revision is not admitted.

facts

1
The plaintiff lives and works in P. In connection with private and professional activities, among other things, he uses the municipal facility “P. K.garten” (hereinafter: K.garten). He seeks the defendant's obligation to refrain from video surveillance and recording of video images of himself in the K.garten.

2
The K.garten is a centrally located public square in the immediate vicinity of the central bus station and the university. It is accessible from four sides and is immediately surrounded by streets. On the square there is a weekly market on Tuesdays and Fridays, the annual folk festival “O. Dult” and, with a certain regularity, political and cultural events. In addition, the K.garten is mainly traversed by passers-by like the plaintiff. In the summer months it also serves as a place to relax. According to the undisputed information in the administrative court judgment and the photos submitted, there is a fountain, seating and lawns as well as two large seesaws as a playground for children. The K.garten is then almost level, mostly finely graveled, can be seen from all sides and is manageable for those present. Visibility is not affected by vegetation. There are very low beds and at the edges of the square there are rows of trees with treetops only from a height of about three meters. When it is dark, the K.garten is mainly illuminated by spotlights embedded in the ground. The area monitored in the K.garten is rectangular and measures 60 m x 80 m.

3
In a letter dated November 23, 2017, the local police inspector sent the defendant information about the K.garten as a basis for possible political initiatives for municipal video surveillance. It states that the K.garten has been a police hotspot for years, especially in the warm months (April to October). The adjacent central bus station is the starting point and destination of all public transport. Due to its appealing location and design, the K.garten is used by many citizens as a place to rest and relax. Both locations are also popular meeting places and whereabouts for young people, "social fringe groups" (alcoholics, BtM users) and, since 2015, increasingly for migrants. Due to numerous disruptions to order and security, both locations have been the subject of a comprehensive police security concept for years, which was last modified in March 2016 and has been intensively implemented since then. In terms of a holistic approach consisting of informal social controls, intensive police controls and social work on the part of the defendant, a decrease in bodily harm and insult offenses has recently been recorded. A noteworthy fight against or suppression of the drug trade (“ant trade”) that can be identified at the K.garten has not yet been successful. The number of seizures here would be in the single digits or low double digits. With regard to well-known dark field investigations, these numbers indicate a brisk drug turnover, whereby this assessment is supported by information from the population and by the regular discovery of drug paraphernalia in the nearby public toilet facility. While the violations of regulations occurred mainly in the summer months, the other types of crime and especially drug-related crime spread throughout the year. The time window between 10:00 a.m. and 10:00 p.m. (90% of all cases) emerged as the relevant time of day. Due to the objective security situation in the urban area, there is no legal basis for setting up police video surveillance in accordance with Art. 33 BayPAG, but Art. 21a BayDSG (old version) opens up this possibility in public facilities in the context of the fulfillment of public tasks, which is somewhat lower-threshold. From the point of view of the police inspection, a video recording in the area of the K.garten would be conceivable.

4
On May 14, 2018, the defendant's city council decided to install video surveillance and to build an extension to the existing toilet facility on the adjacent Konzerthauswiese, which should be manned from 8:00 a.m. to 10:00 p.m. by supervisory staff. The installation of the video surveillance and the construction of the extension cost 200,000 euros. At the end of 2018, a total of ten cameras were installed, eight of which are permanently installed and adjusted, two in each of the four corners of the square on masts. Two more so-called “dome cameras” are installed on masts opposite one another on the long sides. The latter allow the camera operator to zoom and pan. According to the defendants, they are also set to specific areas where a particularly high level of crime is expected. According to the defendant, the special functions of the dome cameras have never been used. They are in the same operating condition as the other eight cameras.

5
On June 13, 2019, the plaintiff filed a lawsuit with the Regensburg Administrative Court, requesting that the defendant be ordered to refrain from observing the P.K.garten by means of image transmission and recording the images.

6
The administrative court dismissed the lawsuit with a court order dated August 6, 2020. The lawsuit is already inadmissible. The General Data Protection Regulation (GDPR) is applicable and not blocked by Art. 2 Para. 2 Letter d GDPR, since the defendant acts primarily as a regulatory authority or as a security authority according to Art. 6 LStVG. The defendant's video surveillance is therefore not to be measured against EU Directive 2016/680. This so-called JI directive includes the maintenance of public order as a task that has been assigned to the police or other law enforcement agencies, but not to "pure" law enforcement agencies. The processing of data to avert danger by non-police security authorities should always be assessed in accordance with the provisions of the GDPR. In addition, the defendant exercised domiciliary rights for the public facility K.garten and performed a task in the public interest or to fulfill a legal obligation. However, Art. 79 Para. 1 GDPR excludes further legal remedies against persons responsible and processors, so that a general action for performance in the form of an action for an injunction pursuant to §§ 1004 Para. 1, 823 Para. 2 BGB within the scope of the GDPR is independent of whether the plaintiff Infringement of rights and thus the right to sue is not permissible. In the event of unlawful data processing, the data subject has the right to lodge a complaint under Article 77 (1) GDPR and subsequently the right to a judicial remedy against the supervisory authority under Article 78 (1) GDPR. Art. 79 (1) GDPR only conveys an individual right to injunctive relief regarding the violation of data subject rights under Chapter III of the GDPR (Art. 13 to 23). The history of the origins and systematics of the GDPR speak against a general claim for injunctive relief. Furthermore, the plaintiff can only assert his rights as the person concerned, i.e. exclusively with regard to the processing of his personal data, but not a general – for everyone – injunctive relief. In addition, according to the general principles of procedural law from the point of view of the need for legal protection, an application or an objection to the person responsible would have to be requested, which is also lacking. Otherwise, the lawsuit would also be unfounded. The video surveillance of the K.garten is lawful on the basis of Article 6 Paragraph 1 Letter e, Paragraph 2, Paragraph 3 Clause 3 GDPR in conjunction with Article 24 Paragraph 1 BayDSG. The K.garten was created as a public green area with a special purpose, the “Stadtpark K.garten” as a partially developed area and thus also implicitly dedicated as a public facility. This purpose of the K.garten as a local recreation area in the city area could require the exercise of domiciliary rights by setting up video surveillance to ward off disturbances. The principle of proportionality does not require these facilities to be a crime hotspot, i.e. a place where there is a significant increase in crime compared to other parts of the city. Also, the plaintiff's right to informational self-determination is not affected in its core area of intimate or private sphere, but only the social sphere, i.e. the public area, which describes an area that at most affects the right of personality and which cannot be shielded from the environment anyway. Measures that affect this area show - if at all - only a low burden intensity. A personal reference through assignment to an identifier such as the name can often only be established later through additional information. In the consideration, it can also be assumed that higher-ranking legal interests such as life and health, which are the focus of BtMG violations in particular, but also the protection of the public facility K.garten from vandalism, are to be assumed.

7
The plaintiff is appealing against the judgment, which has been approved by the administrative court.

8th
As justification, he argues that the plaintiff is entitled to an injunctive relief against the defendant because the video surveillance in the K.garten based on Art. 24 Para. 1 BayDSG unjustifiably infringes his fundamental right to informational self-determination from Art. 1 para. 1 GG intervene. Contrary to the judgment of the administrative court, the scope of application of the GDPR is not open. Art. 2 Para. 2 Letter d GDPR excludes data processing by the competent authorities for the purpose of preventing, investigating, uncovering or prosecuting criminal offenses, including protection against and averting dangers to public security, from the material scope of the regulation. The concept of criminal offense is an independent concept of Union law; this also included administrative offences. The provision also covers data processing to protect against and avert dangers to public safety, i.e. preventive averting dangers. Precisely these purposes are primarily being pursued by the defendant through the video surveillance – in addition to self-protection against vandalism, which incidentally also covers damage to property. The administrative court behaves in a contradictory manner when it accepts that the defendant is acting as a security authority in accordance with Art. 6 LStVG, but denies the scope of Art. 2 Para. 2 Letter d GDPR. It follows that the GDPR only applies to Bavarian authorities within the scope of the JI Directive insofar as Art. 28 Para. 2 BayDSG refers to it. This is not the case with regard to Art. 79 GDPR. If the GDPR is applicable, Art. 79 GDPR does not have any blocking effect on actions for an injunction, contrary to the judgment of the administrative court. The purpose of the provision is not to restrict legal protection against illegal data processing that violates Article 8 and Article 47 of the EU Charter of Fundamental Rights (GRC) and against the informational right of self-determination of the Basic Law according to Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 , Art. 19 para. 4 GG violate. The provision also does not limit legal protection to the rights of data subjects specified in Chapter III of the General Data Protection Regulation, which also exist. Incidentally, Art. 21 GDPR also provides for a right of objection, i.e. a claim for injunctive relief. The lawsuit is also well founded. The defendant is not acting in fulfillment of a public task if it carries out video surveillance of public areas for quasi-police purposes and circumvents the special provision of Art. 33 BayPAG. Furthermore, the requirements of Art. 24 Para. 1 BayDSG are not met because video surveillance is not necessary and there are indications that the legitimate interests of the data subjects prevail. The suitability and necessity of video surveillance to fight crime must already be doubted. Neither in absolute terms nor in comparison to the rest of the city is the K.garten a crime hotspot. With a restrictive interpretation of Art. 24 (1) BayDSG, which is required in view of constitutional considerations, video surveillance is only permissible to prevent criminal offenses, but not to prevent administrative offences. The defendant could also not rely on their domiciliary rights for the surveillance of a public area, since the K.garten was not a pacified property. The K.garten is not a public facility for the protection of which video surveillance is permissible at all, since it is a quasi-public traffic area and not a municipal facility within the meaning of Art. 24 BayDSG. No services of general interest would be provided there. The theoretical possibility of a hazard occurring is not enough for comprehensive video surveillance. The documentation of the incident by the local police does not prove the proportionality of the video surveillance, but rather its disproportionality. The K.garten is a place where citizens typically feel that they are not being observed during their leisure activities, such as sunbathing.

9
The plaintiff requests

10
to oblige the defendant to refrain from video observation and recording of video images of the plaintiff in the P.K.garten, repealing the court decision of the Bavarian Administrative Court in Regensburg of August 6, 2020,

11
alternatively, to determine that the defendant is not authorized to use the cameras installed in the P.K.garten to collect personal data in the form of image recordings about the plaintiff and to store or otherwise process these recordings.

12
The defendant requests

13
to dismiss the appeal.

14
As justification, she argues that the General Data Protection Regulation is applicable. Art. 2 para. 2 letter d GDPR must be interpreted narrowly to the effect that it must be an authority that is specifically appointed to combat criminal offenses and that also has another task to protect public security. This applies in particular to police authorities. If the provision were understood differently, large parts of the regulatory administration would be excluded from the material scope of the GDPR. The actions of non-police security authorities should therefore always be assessed according to the provisions of the GDPR. The plaintiff would only have the rights of the data subject under the GDPR. The general injunction is blocked. A person who is subjectively affected is entitled to the rights under Art. 12 to 23 GDPR. In addition, the person concerned can appeal to supervisory authorities and courts according to Art. 77 et seq. GDPR. It is also not necessary to enable the data subject to claim an injunctive relief in court via Art. 79 GDPR with regard to Art. 47 EU-GRC. In particular, with the right of objection under Art. 21 GDPR, the data subject can make data processing that is permitted in itself inadmissible for the future. The lawsuit is also unfounded. The legal basis for video surveillance is Article 6 Paragraph 1 Letter e GDPR in conjunction with Article 24 Paragraph 1 BayDSG. Their conditions are there. The K.garten is a public facility within the meaning of Art. 21 GO. It is a public green space with a special purpose. The K.garten is intended as a local recreation area for the population and is open to the public. It is subject to the municipal green space statute. He is not part of the public street space and is not in common use. The K.garten therefore has a special purpose and is not only intended for crossing. The defendant could therefore exercise domiciliary rights at the K.garten. This also includes the prevention of criminal offences. The decisive factor is that the statistics for the K.garten compared to other locations in the city area show an increased incidence of criminal and administrative offenses and are described by the local police as a focal point. In addition, the defendant has the public task of maintaining the functionality of the public facility as a local recreation area. This also includes maintaining the possibility of undisturbed visitor traffic and undisturbed use. With regard to the aim of preventing crime, the video surveillance system has made great strides. The annual expenditure of the city garden center for the elimination of damage caused by vandalism in front of the video surveillance is estimated at around 25,000 euros. This expense includes daily damage in the area of wells and green areas (shards of glass and bottles as well as rubbish in the well and in green areas, urinating and defecation, uprooting of plants) as well as damage that occurred several times a year (damaged and torn out granite slabs at the wells, larger amounts of gravel in the well, damaged and torn out metal letters from the street signs, graffiti on the metal troughs, damage to the benches and overturned large plant pots). The purpose of video surveillance of the K.garten is also to preserve it as a public facility and local recreation area. The damage to the benches, planters and flower beds has decreased after the introduction of video surveillance. Administrative offenses or even criminal offenses that make it more difficult to achieve this purpose must be prevented. Image recording is also part of deterrence. The potential perpetrator must expect that his act will be recorded and that the recording will not only be available for identification but also as evidence in criminal proceedings. The aim of prosecuting administrative offenses or criminal offenses is merely a secondary repressive purpose, which in individual cases only comes into play when video recording is used if the recording justifies the initial suspicion of a criminal offence. It is not suitable for suppressing or superimposing the primary purpose of crime prevention pursued with the overall measure. The video surveillance does not affect a highly personal area or even an intimate area of the persons concerned. Sunbathing is not typical behavior in the K.garten, as the relatively small park is surrounded by busy streets. Video surveillance and evaluation is strictly regulated. The defendant had made an agreement with the police inspection to use the video surveillance system in the K.garten. The technical system is a strictly isolated, closed system that cannot be attacked from outside due to the lack of connection to the Internet.

15
The Bavarian state prosecutor's office is involved in the proceedings as a representative of the public interest, does not file an application, but considers the rejection of the appeal to be correct. Art. 79 para. 1 GDPR requires a violation of one's own rights. The GDPR is applicable; it applies without restriction and directly to the prevention of administrative offenses and criminal offenses by general security authorities within the framework of general averting of danger. An action for an injunction is not blocked by Art. 79 (1) GDPR. The provision does not contain any limitation of the admissibility of legal remedies to those directed against an alleged violation of the rights of the data subject expressly standardized in Chapter III. If the legislature had wanted a restriction of the rights to which this ordinance is entitled, this should also have been clearly expressed in the text of the norm with regard to Art. 47 (1) EU-GRC. This is not the case and there are no indications of a correspondingly restrictive intention on the part of the legislator in the history of the setting of norms. However, the video surveillance can be based on Art. 24 BayDSG and is lawful. It serves to protect the people in the K.garten and the objects used for the purpose of furnishing.

16
The Senate held an oral hearing on March 23, 2022. The defendant's representatives described the video surveillance process and its control. Based on a played video recording, it was possible to determine that the identity of people is recognizable.

17
Following the oral hearing, the defendant, as requested by the Senate, commented on the intra-municipal coordination and consideration process for the introduction of video surveillance and its dimensioning in 2018 and submitted the requested incident documentation to the local police. At its meeting on May 23, 2022, the defendant's city council approved the current video surveillance system. The defendant did not have any numerical documentation of the incident with regard to the damage caused by vandalism. The damage was repaired during regular checks by the building yard and the city garden center. It should be remembered that before the video surveillance was installed, there were repeated reports of damage caused by vandalism in the K.garten. It is also worth remembering that about five to seven years ago there was a lot of fuss in the city garden center and in the building yard because of syringes that were repeatedly found in the beds. In the meantime, the damage caused by vandalism has fallen to a low three-digit amount.

18
The plaintiff replied that the decision of the city council of May 23, 2022 was not relevant because it was made after the end of the oral hearing. But even if this decision were to be taken into account, it would be void because the defendant's city administration misled its city council about the reason and the meaning, so that the city council assumed the facts were wrong. Moreover, the new resolution does not meet the requirements for a documented assessment, which is required under Art. 24 BayDSG. In fact, as with the original decision of May 14, 2018, there was no consideration of the basic introduction of video surveillance or the modalities. The decision is also faulty because the fundamental rights of the persons concerned were not adequately taken into account. The K.garten is a traffic area heavily frequented by up to 10,000 people per day, all of whom are exposed to intensive video surveillance. It's not a dangerous place. There is no remotely dangerous situation in the K.garten that could justify the video surveillance of the defendant. This is shown in particular by the police incident documentation that has now been submitted. With regard to damage caused by vandalism, the defendant did not present any convincing evidence.

19
For further details of the facts, reference is made to the submitted official files and the court files of both instances, including the minutes of the hearing of the Senate.

Reasons for decision

20
With the consent of the parties involved, the Senate decides without (further) oral hearings (§ 101 Para. 2 VwGO).

21
I. The subject of the dispute in the appeal proceedings is the last motion made in the oral hearing of the Senate. There is no implied partial withdrawal of the action in the (main) action filed in the appeal proceedings. According to the justification given in the proceedings before the administrative court, the application was to be interpreted to the effect that the plaintiff wanted to prevent the video surveillance of his person in the K.garten. The plaintiff clearly expressed this in the statement of claim, as he explained in detail in his brief of April 6, 2021 in the appeal proceedings. The plaintiff merely did not put forward any special individual reasons according to which his observation in particular should be unlawful; Rather, he argued that the video surveillance of every person in the K.garten, including his person, was illegal. Ultimately, the plaintiff's argument also stems from the fact that if the video surveillance of his person was (legally) prohibited, the video surveillance in the K.garten should generally have to be stopped - in practice - because a differentiated video surveillance that only omits the observation of the plaintiff would hardly be possible .

22
II. The admissible appeal of the plaintiff is justified, since the complaint is admissible and justified, contrary to the judgment of the administrative court. The video surveillance of the plaintiff in the K.garten by the defendant proves to be unlawful at the relevant time of the Senate's decision and violates the plaintiff's rights, so that he is entitled to an injunction. The judgment of the Regensburg administrative court was therefore to be reversed and the application to be granted. It is therefore no longer necessary to decide on the alternative application for a declaration.

23
1. The action for an injunction pursuant to Section 1004 (1) sentence 2 of the German Civil Code in conjunction with Article 2 (1) and Article 1 (1) of the Basic Law is admissible. Regulation (EU) 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, on the free movement of data and on the repeal of Directive 95/46/EC (OJ L 119 of 05/04/2016, pp. 1-88, General Data Protection Regulation, hereinafter: GDPR) and not Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to processing personal data by the competent authorities for the purposes of preventing, investigating, detecting or prosecuting criminal offenses or the enforcement of sentences, as well as the free movement of such data and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89 -131, hereinafter: JI Directive) applicable (see letter a). The right to omission of data processing is not excluded by Art. 79 Para. 1 GDPR (letter b). The plaintiff can refer to a right to sue pursuant to Section 42 (2) VwGO (letter c); it was not necessary to carry out opposition proceedings (letter d).

24
a) Municipalities which, in accordance with Art. 24 (1) No. 1 and No. 2 BayDSG, process personal data using opto-electronic devices (video surveillance) and do this in the context of fulfilling public tasks or in the exercise of domiciliary rights, e.g. to save lives , health, liberty or property of persons who are in the area of public facilities or other structures of public bodies (No. 1), or to protect public facilities and the objects located there (No. 2), are not competent authorities in Within the meaning of Art. 2 Para. 2 Letter d GDPR. The protection of municipal facilities as well as other buildings and locations specified in Art. 24 Para. 1 BayDSG by video surveillance is not a measure for criminal prosecution or to avert danger within the meaning of Art. 2 Para. 2 Letter d GDPR. The more specific Data Protection Directive for Justice and Home Affairs (JI Directive, loc.cit.) is therefore not relevant. Contrary to the opinion of the plaintiff, it also does not have a blocking effect with regard to video surveillance according to Art. 24 BayDSG.

25
It can therefore remain open here whether competent authorities within the meaning of Art. 2 Para. 2 Letter d GDPR only the public bodies mentioned in Art. 28 Para. Authorities of forensic law enforcement) and general security and regulatory authorities, which are responsible for averting danger according to Art. 6 LStVG, are not included (cf. Recital 19 of the GDPR and Wilde/Ehmann/Niese/Knobloch, data protection in Bavaria, as of: May 2022, BayDSG, Art. 28 para. 20; GDPR Art. 2 para. 5).

26
The fact that video surveillance pursuant to Art. 24 Para. 1 BayDSG is also associated with the prevention of criminal offenses does not conflict with the applicability of the General Data Protection Regulation. Video surveillance – outside the private sphere – regularly serves to avert danger and prevent crime. These are legitimate interests if there is a risk situation that goes beyond the general risk to life (cf. BVerwG, U.v. 27.3.2019 - 6 C 2.18 - juris marginal number 28 on a doctor's practice). With video surveillance of a public facility or facility, robbery, theft, damage to property, possibly even unauthorized entry (trespassing) or other criminal and administrative offenses, as with any private property (gas station, supermarket, etc.), should be prevented on a regular basis. In the case of public institutions, there is also the prevention of other non-standard behavior in accordance with the respective statutory provisions or house rules for the institution. The fact that video surveillance not only aims to prevent such things, but also – if necessary – by identifying the perpetrator – to enable criminal prosecution does not conflict with the aim of prevention, because a possible determination of the perpetrator and criminal prosecution also directly serve to prevent (prevent) criminal offenses (cf . on this also BVerwG, U.v. 25.1.2012 - 6 C 9.11 - BVerwGE 141, 329 para. 30). The defendant is not acting here as a body or institution to which the law of the Member States has transferred the exercise of public authority and sovereign powers for the purposes of the JI Directive (cf. recital 11 sentence 2 of the Directive).

27
b) Art. 79 (1) GDPR, contrary to the view of the administrative court, closes an action for an injunction by data subjects pursuant to Section 1004 (1) sentence 2 BGB analogously in conjunction with Art. 2 (1) and Art. 1 (1) GG in the event of a violation of their fundamental right to information Self-determination through unlawful processing of your personal data. According to this provision, every data subject has the right to an effective judicial remedy, without prejudice to any available administrative or extrajudicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Art. 77 GDPR, if they believe that their rights under this regulation are have been violated by processing their personal data that is not in accordance with this regulation.

28
Referring to the comment by Kreße (in Sydow/Marsch, GDPR, Art. 79 paras. 7 ff., 10 ff.), the administrative court assumes that the wording “rights to which you are entitled on the basis of this regulation” only covers the “rights of the data subjects according to Chapter III of the GDPR" (Articles 12 to 23). That's not correct. A claim for injunctive relief against unlawful data processing, which also includes unlawful data collection, is not expressly standardized in Chapter III. However, the provisions in Chapter III regulate modalities and special features in individual cases for the benefit of the persons affected by the data collection and only deal with a fundamentally lawful data collection. Neither the wording of the provision, nor the recitals, the history of the norm, or an interpretation of the meaning and purpose of the provision provide any indication that Art. 79 (1) GDPR extends the rights of data subjects even in the case of fundamentally illegal data processing only to wanted to limit rights under Chapter III of the GDPR and specifically wanted to exclude the most effective legal remedy to prevent unlawful data processing, namely the injunction; Incidentally, such a blocking effect is also not assumed in the aforementioned comment section. If the legislator had wanted a restriction to the rights of data subjects mentioned in Chapter III, this should have been clearly expressed in the standard text of Art. 79 Para. 1 GDPR (cf. Halder/Walker, ZD 2020, 605).

29
Rather, the legal protection guarantee of Art. 79 Para. 1 GDPR concerns all subjective rights of the individual, which the General Data Protection Regulation no matter where (cf. Martini in Paal/Pauly, GDPR, 3rd edition 2021, Art. 79 para. 4 , 8, 11b, 17). In addition to the rights of data subjects mentioned in Chapter III, provisions of substantive law can also have such a protective purpose. According to Art. 8 Para. 1, Para. 2 Sentence 1 GRC and Art. 16 Para. 1 TFEU, every person has the right to the protection of personal data concerning them. If the processing of personal data of a data subject is materially unlawful (e.g. because it violates Art. 6 Para. 2, Para. 3 DSGVO in conjunction with national implementing regulations such as Art. 24 BayDSG), such processing that is not in accordance with this regulation can result of the personal data of the person concerned also results in a violation of the rights to which the person concerned is entitled under this regulation, in particular a violation of the right not to be exposed to any unlawful processing of his personal data. The federal legislature apparently also assumes such an understanding when it determines a place of jurisdiction for injunctive relief actions in Section 44 (1) BDSG, which would be meaningless if such actions were not admissible. Art. 79 (1) GDPR does not limit the legal protection options with regard to an action for an injunction pursuant to Section 1004 (1) sentence 2 BGB analogously in conjunction with Art. 2 (1) and Art. 1 (1) GG against illegal data processing (also Nemitz in Ehmann/Selmayr, GDPR, Article 79 paragraphs 3 and 5; Schaffland/Wiltfang, GDPR, 9 EL 2022, Article 79 paragraphs 1 and 1c with further references; Martini in Paal/Pauly, loc.cit., Article 79 paragraph 17.; Herbricht, jurisPRITR/2020; LG Frankfurt, B.v. 15.10.2020 - 2-03 O 356/20 - juris LS; LG Darmstadt, U.v. 26.5.2020 - 13 O 244/19 - juris marginal number 37 f.; Boehm in Simitis/Hornung/Spiecker, GDPR, 1st edition 2019, Art. 79 para. 10).

30
c) The plaintiff can refer to the right to sue pursuant to § 42 Para. 2 VwGO, because the video surveillance of the K.garten may violate his right to informational self-determination pursuant to Art. 2 Para. 1 and Art. 1 Para. 1 GG . As the hearing of the Senate revealed, the video surveillance in the K.garten constitutes personal data processing because the persons observed can be identified on the monitors connected to the cameras and on the recordings, which is sufficient (cf. Art. 4 No. 1 GDPR and ECJ, U.v. 11.12.2014 - C-212/13 - BayVBl 2015, 409 para. 22).

31
d) The judicial assertion of a public-law injunctive relief analogous to § 1004 Paragraph 1 Clause 2 BGB does not require the implementation of an objection procedure. Neither federal nor state law nor EU law standardize such a duty. The right of objection according to Art. 21 Para. 1 GDPR requires a special situation of the data subject. It is not a general right to object to any type of data processing. Rather, the provision presupposes that the data processing according to Art. 6 Para. 2 Letters e and f GDPR is "in itself" lawful, but that there are special reasons in individual cases, so that the protection of personal data has priority. Only if such a right is asserted due to the existence of special reasons, is a preceding opposition procedure required (cf. Nemitz in Ehmann/Selmayr, loc.cit., Art. 79 para. 5; Schaffland/Wiltfang, loc.cit., Art. 21 para. 2 with further references. ).

32
2. The lawsuit is also justified. The video surveillance in the K.garten is unlawful and the plaintiff is entitled to have it stopped.

33
The video surveillance of the plaintiff in the defendant's K.garten, in which he is entitled to stay, represents data processing within the meaning of the GDPR. It requires justification in accordance with the provisions of Art. 6 GDPR, since according to Art. 6 Para Processing of personal data is only lawful if at least one of the conditions set out in paragraph 2 is met. However, since the requirements of Article 24 (1) BayDSG, issued on the legal basis of Article 6 (2) (e), (3) sentence 1 (b) GDPR, for the video surveillance of the plaintiff in the defendant's garden are not met and If there is a risk of repetition, the plaintiff has a public-law injunctive relief pursuant to § 1004 Paragraph 1 Clause 2 BGB analogously in conjunction with Article 2 Paragraph 1 and Article 1 Paragraph 1 GG because of an encroachment on his general right of personality, here on his right to informational self-determination . There is no danger in the defendant's garden that would require video surveillance to protect the legal interests specified in Art. 24 (1) Nos. 1 and 2 BayDSG. Irrespective of this, the legitimate interests of the visitors and passers-by affected prevail. It can therefore remain open as to whether the intra-municipal coordination and consideration process for the original decision to introduce video surveillance in 2018 was carried out properly.

34
According to Art. 6 Para. 1 Letter e GDPR, processing is only lawful if the processing is necessary for the performance of a task that is in the public interest or in the exercise of official authority that has been transferred to the person responsible. This requirement is met if a municipality lawfully operates video surveillance in accordance with Art. 24 BayDSG. Because Art. 24 BayDSG is a legal basis under national law, which defines the purpose of the processing and the public task of the data processor (cf. Art. 6 para. 2, para. 3 sentence 1 letter b and sentence 2 DSGVO).

35
According to Art. 24 Para. 1 BayDSG, the processing of personal data with the help of optical-electronic devices (video surveillance) is permitted if this is necessary in the context of the fulfillment of public tasks or in the exercise of domiciliary rights,

36
1. the life, health, liberty or property of persons who are in or in the immediate vicinity of public facilities, public transport, official buildings or other structures of public places, or

37
2. cultural assets, public facilities, public transport, office buildings or other structures of public bodies and the items located there or in their immediate vicinity

38
and there are no indications that overriding legitimate interests of the data subjects are being adversely affected.

39
The K.garten is a public facility (see a) so that video surveillance to protect the legal interests mentioned in Art. 24 Para. 1 No. 1 and 2 BayDSG is generally an option (b). However, the video surveillance of the K.garten is not suitable or necessary for the fulfillment of public tasks, in particular for the protection of the legal interests mentioned in the regulation (c); Otherwise, the legitimate interests of the data subject prevail (d).

40
a) The K.garten is a public facility within the meaning of Art. 24 Para. 1 BayDSG. According to the case law of the Bavarian Administrative Court (cf. U.v. 02/01/2022 - 4 N 21.757 - BayVBl 2022, 380 para. 2, 21 ff.), green spaces that are dedicated can also be public facilities within the meaning of Art. 21 GO.

41
As the administrative court rightly explained (GA p. 28), the K.garten was created as a public green area with a special purpose as a city park in the course of the implementation of the development and green space plan "Neue Mitte P. - Teilgebiet 1". As a public green area, the K.garten is covered by the statutes on the use of public green areas, municipal playgrounds and soccer fields as well as leisure facilities of the defendant. Public green areas within the meaning of these statutes are the green areas and parks owned by the defendant, which are accessible to the general public and are maintained by the defendant, whereby the green areas also include the paths and squares, etc. as well as facility facilities (§ 1 para 2 of the Articles of Association). In §§ 2 et seq. of the statute, behavior is regulated, among other things, in public parks, as well as bans on entering and offenses against the law. The K.garten is thus dedicated as a public facility. There are no apparent reasons for interpreting the concept of public body differently when applying the General Data Protection Regulation than in municipal laws. With regard to the principle of proportionality and the protection of data subjects, there is no need for this either, because a differentiation can be made depending on the type of facility.

42
The character as a public facility does not conflict with the fact that parts of the K.garten are also used as pedestrian paths. The K.garten is not dedicated as a public traffic area with the right to common use. There is at most - in addition to a temporary event area, whereby video surveillance is switched off when events are held - an actual public traffic area, since the paths can be used by anyone and the defendant, as it explained in the oral hearing, tolerates this. However, the fact that passers-by use a public green space simply to walk through does not prevent it from being designated as a local recreation area.

43
b) The fulfillment of a public task within the meaning of Art. 24 Para. 1 BayDSG and Art. 6 Para , to protect the life, health, liberty or property of persons staying there, as well as the property of the defendants with regard to the items brought in. This "extended self-security" (cf. guidance from the Bavarian state data protection officer on video surveillance by public authorities, as of Feb. 2020, p. 22 marginal number 37 - https://www.datenschutz-bayern.de; hereinafter: guidance) by video surveillance can in principle be suitable to ensure proper use of a local recreation area and to prevent dangers of the type described in Art. 24 Para. 1 BayDSG. Here, the video surveillance only records the municipal facility as such and does not encroach on adjacent properties. The investigation and prosecution of criminal and administrative offenses is only in the midst of video surveillance according to Art. 24 Para. 1 BayDSG insofar as it protects the legal interests protected in Art. 24 Para Serves to ensure the purpose of dedication in accordance with Art. 24 Para. 1 No. 1 BayDSG. It can be a side effect of video surveillance and may also be intended as such, because regular investigation and prosecution of criminal offenses also prevent the commission of such criminal offenses (cf. also BVerwG, U.v. 25.1.2012 - 6 C 9.11 - BVerwGE 141, 329 para. 30 ); this intended side effect does not constitute an encroachment on the police's area of responsibility.

44
c) Art. 24 Para. 1 BayDSG requires the facts and the proportionality of the video surveillance. This first requires the existence of a danger to the legal interests represented and the suitability and necessity of video surveillance to avert the danger.

45
In order to determine whether and to what extent video surveillance is necessary for the self-security of a public institution, it must first be determined whether and what dangers exist for the legal interests specified in Art. 24 Para. 1 No. 1 and 2 BayDSG in detail. A merely theoretical possibility of danger or a subjectively perceived feeling of insecurity is not sufficient for video surveillance. The assessment of the dangerous situation requires a prognosis. This prognostic decision must be based on facts. As a rule, an incident documentation must be created for this purpose (cf. orientation guide, loc. ). According to the guidelines of the European Data Protection Board, damage and threats in the past must be documented as precisely as possible with regard to the time, the legal interest concerned and the course of the incident. For this purpose, facts should be collated and - as far as possible - evidence such as criminal charges or photographic evidence should be collected.

46
Video surveillance can also be permissible if damage or serious incidents have not yet occurred in the past (cf. ECJ, U.v. 11.12.2019 - C-708/18 - ZD 2020, 148 para. 44); but then the necessity of video surveillance must be demonstrated in a different way, unless it is a place where there are immanent dangers to the legal interests specified in Art. 24 Para. 1 No. 1 and 2 BayDSG. This is not the case with the K.garten, which is a public green space that can be viewed from all sides.

47
The burden of proof for the existence of the factual requirements of Art. 24 Para. 1 BayDSG lies with the defendant. According to Art. 5 Para. 2 GDPR, the person responsible is responsible for compliance with the principles of Art. 5 Para. 1 GDPR and must be able to prove compliance with them ("accountability"). These principles also include the collection of personal data for “legitimate purposes” (cf. Art. 5 (1) (b) GDPR).

48
The video surveillance of the plaintiff in the P.K.garten is unlawful because the necessary risk situation with regard to the legal interests of Art. 24 Para Defendant has not been adequately presented or proven, and otherwise not available.

49
aa) Right from the beginning of the video surveillance, there was no danger in the K.garten that would have required video surveillance to protect the legal interests specified in Art. 24 Para. 1 No. 1 BayDSG. Even at the relevant time of the Senate's decision, the defendant's forecast of a future risk situation is not plausible due to the lack of a corresponding factual basis.

50
The starting point for the defendant's decision to video surveillance of the K.garten was the incident documentation regarding the criminal offenses and administrative offenses committed in the K.garten in 2017. According to this, there were 94 events that year that were recorded by the police, reported and documented. In addition to incidents that were not relevant due to the lack of a dangerous situation (20 cases of "find/loss"), there were four offenses of bodily harm, four insults, one threat and two acts of resistance, three offenses against property, one damage to property, 16 violations of the BtMG (ten times cannabis, six times herbal mixtures) , a violation of the Weapons Act, eight cases (not related to events) that are labeled "disputes/rioters" and 34 other "administrative offenses under the LStVG, OWiG, etc." (e.g. alcohol consumption, urination, littering). These figures show a relatively low density of criminal offences, administrative offenses and violations of the municipal green space statute in the K.garten, namely 74 per year, i.e. only about one incident documented by the police every five days. The nature and severity of the individual incidents are also not documented (e.g. severity of bodily harm and property crimes). In the case of several incidents, it is also doubtful whether classification as an administrative offense is readily justified. As far as the defendant states that the number of criminal offenses for "P. Circumstances” is relatively high, this cannot be taken into account, because it is not the conditions in the city but the objective number of incidents that must be in proportion to an encroachment on general personality rights.

51
After the introduction of video surveillance, there was no significant change in the number of incidents. According to the security concept on security-related incidents submitted to the city council on May 23, 2022 and the incident documentation sent by the police inspection P lfSG") in K.garten 101 in 2018, 57 in 2019, 80 in 2020 and 54 cases in 2021. The cases of violence against people (bodily harm, insult, threats) remained at eleven (in the meantime 6, 4 and 11) practically unchanged in the result. Drug-related crime fell from 16 cases in 2017 to 24, 16, 12 cases in the following years to 12 in 2021. In the years that followed, so-called hard drugs (amphetamine, methamphetamine, heroin, LSD) were only very rarely involved. Property crime increased slightly after 2017 and 2018. Only one case of damage to property was recorded between 2017 and 2019, after that none. In the case of other incidents (e.g. alcohol consumption, urination, littering), the number of cases changed from 34 in 2017 to 63, 31, 48 to 25. The incidents described as “disputes/rioters” that were not related to an event fell from eight in 2017 to four , three, five to one in 2021.

52
bb) This development of the relevant incidents shows that not only is video surveillance necessary, but also largely that video surveillance is not suitable, i.e. it is not effective and efficient to avert danger (cf. on this requirement Niese in Wilde/Ehmann/Niese / Garlic, loc. cit., Art. 6 GDPR marginal number 29 with further references). Verbal insults cannot be contained by video surveillance anyway; Video surveillance is also not relevant for bodily harm committed out of emotion – spontaneously and affectively. The trade in narcotics (“ant trade”) can hardly be curbed by video surveillance, at least insofar as it is not clear which goods are ultimately traded. In addition, the report submitted by the P. Police Inspectorate of April 29, 2022 points out that the area of the "Neue Mitte P.", which includes the K.garten, is well known in the "BtM scene" as a contact address and is actually frequented for the illegal BtM trade in hard drugs. This scene only meets in the area of the K.garten to agree on illegal deals. The actual actions then usually happened remotely, for example in the underground car parks there. This statement also shows that video surveillance can have little or no positive effect in this regard. Based on the documentation presented, it cannot be assumed that the life and health of visitors to the K.garten, who represent a particularly important interest (cf. also the assessments in Section 4 (1) sentence 2 BDSG ), would be endangered.

53
If perpetrators who committed crimes elsewhere could be identified because they fled through the K.garten (cf. report from the P. Police Inspectorate of November 3rd, 2020), this cannot be used for the video surveillance of the K.garten. because the K.garten does not represent a source of danger in this respect; otherwise you could video monitor any area that is suitable for escape.

54
As far as the defendant and the police state that syringes (probably after heroin use) were also found in the past, the statement is also too vague due to a lack of documentation, especially since it was also mentioned that the syringes were not found near the toilet facility on the adjacent video-monitored Konzerthauswiese, which incidentally is also obvious.

55
cc) The risk situation with regard to the protection of the legal interests mentioned in Art. 24 Para. 1 No. 2 BayDSG has not been adequately explained by the defendant or substantiated by documentation and evidence.

56
The defendant argues that damage caused by vandalism in the past amounted to EUR 25,000 a year. The defendant puts this number in the room without submitting any documentation of the incident or making this number even remotely credible. The plaintiff rightly points out that the costs for routine waste disposal, but also for routine conservation measures with regard to the planting, should not be included here. If children throw stones into the well or damage or uproot plants, such behavior can hardly be curbed by video surveillance, as can damage caused by the behavior of dogs, for example. Otherwise, it is neither stated nor apparent to the Senate which valuable parts of the items brought into the K.garten would have been restored or replaced with such an annual effort. A rough estimate from the memory of a city employee is not enough to justify video surveillance.

57
Should significant damage occur to the municipal facilities in the K.garten in the future, the defendant is free to document this and, if necessary, to selectively consider video surveillance again. In any case, the protection of municipal property does not justify complete surveillance of the K.garten, i.e. not also for areas in which there is no threat to property.

58
d) With regard to the danger situation in the K.garten described under letter c, the legitimate interests of the persons affected by the video surveillance in the K.garten outweigh the interest of the defendants in the video surveillance (cf. Art. 24 Para. 1 a.E. BayDSG).

59
The defendant and the administrative court underestimated the interest of the persons concerned in not being video-monitored in the K.garten. Video surveillance in public space is an intensive intervention (cf. BVerfG, KB.v. 23.2.2007 - 1 BvR 2368/06 - BVerfGK 10, 330 para. 52).

60
Since the K.garten is surrounded by streets on four sides and is clearly visible despite the trees, nobody can expect to be completely unobserved there. However, the encroachment on the fundamental right under Art. 2 Para. 1, Art. 1 Para. The general right of personality not only guarantees the protection of private and intimate spheres, but also, in the form of the right to informational self-determination, also takes into account the informational protection interests of the individual who goes public (BVerfG, B.v. 23.2.2007 a.a.O., para. 39 ).

61
Insofar as the K.garten is used as a recreational area, people go for walks there, sit on the benches there to rest or, for example, to eat during the lunch break. People communicate there and parents prefer to hang out with their children, for whom there is even play equipment. There is also a fountain.

62
Data subjects can be assured that they will not be monitored in publicly accessible areas, particularly where such areas are typically used for recreation, relaxation, and leisure activities. In areas in which people spend their free time, stay longer and communicate with each other, video surveillance usually interferes significantly with the fundamental right to informational self-determination (cf. European Data Protection Board, loc.cit., p. 14 para. 38). In addition, children are affected in these areas, as well as here, for whom the interests worthy of protection weigh particularly heavily (cf. Article 6 (1) (f) GDPR). Their play and leisure activities are monitored here.

63
It should be noted that the defendant does not limit itself to the mere recording of images, which are only evaluated on an ad hoc basis, but also enables the simultaneous, permanent observation via a monitor. In relation to the mere observation by other people present or from the adjacent streets, a video observation compared to the human eye represents a larger and more intensive observation even under difficult lighting conditions (VGH BW, U.v. 21.7.2003 - 1 S 377/02 - juris marginal no. 35). Through the additional recording of the image material obtained, the life processes observed are also technically fixed and can subsequently be accessed, processed and evaluated.

64
In addition, according to the plaintiff's undisputed information, several thousand people cross the K.garten every day to reach the nearby bus station, and these are probably almost exclusively people who do not create any reason for surveillance. Unsuspicious interventions with a wide spread, in which numerous people are included in the sphere of action of a measure who are not related to specific misconduct and did not cause the intervention through their behavior, generally show a high intensity of intervention (cf. BVerfG, KB. v. 23.2.2007 - 1 BvR 2368/06 - BVerfGK 10, 330 para. 51, 56 with further references).

65
In the overall assessment of the risk situation described for the legal interests named in Article 24 (1) Nos. 1 and 2 BayDSG on the one hand and the intensity of the encroachment on the fundamental right to informational self-determination according to Article 2 (1) in conjunction with Article 1 (1) GG on the other hand, the large-scale video surveillance of the K.garten carried out by the defendant is not justified; it is already incomprehensible that it would be suitable and necessary. It is also not proportionate in the narrower sense, i.e. not appropriate, with regard to the interests of visitors to the K.garten that are worthy of protection.

66
On the legality of the dimensioning of the video surveillance in detail, namely the observation of the entire K.garten with ten cameras, two of which are so-called dome cameras that can be swiveled and zoomed, with which not only video surveillance by the supervisory staff in the annex built for this purpose can be carried out at all times to the toilet facility on the neighboring property, the Konzerthauswiese, but also a recording takes place over a period of 19 hours a day and a storage period of 72 hours, it is therefore no longer relevant.

67
III. The decision on costs follows from Section 154 (1) VwGO.

68
IV. The decision on provisional enforceability is based on Section 167 (2) VwGO in conjunction with Section 708 No. 11, Section 711 ZPO.

69
V. The revision is not allowed because there is no reason for admission according to § 132 Abs. 2 VwGO.