BVwG (Austria) - W211 2268942-1

BVwG - W211 2268942-1
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 55(3) GDPR B-VG Art133 para.4 B-VG Art130 para.2a B-VG Art133 para.4 B-VG Art87 para.2 BVwGG §24a BVwGG §3 GOG §84 GOG §85
Decided:	19.07.2023
Published:	23.08.2023
Parties:
National Case Number/Name:	W211 2268942-1
European Case Law Identifier:	ECLI:AT:BVWG:2023:W211.2268942.1.00
Appeal from:
Appeal to:	Appealed - Confirmed
Original Language(s):	German
Original Source:	Federal Administrative Court (BVwG) (in German)
Initial Contributor:	Meadhbh Fitzsimons

Scope of application of exception under Article 55(3) GDPR. The main question for the Judge was whether the complaint made that was allegedly in violation of the complainants data privacy rights was carried out in context of judicial activity.

English Summary

Facts

The data subject made a complaint against the respondent, as organ's of the respondent searched through the data subject's office in 2020 and took seven pictures on a private cell phone of the complainants office, the contents of a box and handwritten notes on files. The complaint is focused on the data processing that took place in the secret search and how the respondent violated the complainants fundamental right to privacy under the GDPR. The complaint was made in a timely manner because the complainant only found out after the oral hearing the data processing that occurred during the search of the office.The complaint was filed within the one year complaint period from the time the matter became know in connection with section 85 (4) GOG. The searched violated article 8 of the ECHR, the complainants right to a private life. It is clear the data processing was carried out, outside disciplinary or criminal proceedings exclusively on behalf of the respondent which makes it clear this was not processed out by an impartial disciplinary court. This in turn affected the judicial independence of the judge. According to section 85 (1) GOG, a prerequisite to admit a complaint is that it must violate a fundamental right to data protection by an organ that exercises judicial activity, which is not the case here as there is no connection with court or legal proceedings, it was an issue that took place in the company. The processing of data was necessary for official supervision and therefore, had no corresponding legal basis. The respondent requested the complaint to be rejected and if necessary dismissed. Initially, there was confusion over which court department this complaint needed to be assigned too, in the beginning it was not assigned to a court department as the authority in charge assumed there would be a decision-complaint procedure, eventually the court departments were assigned once the files attached were examined in the legal department and the contents were found to fall under Art. 130 Para. 2a B-VG. In addition, it is also accurate that the judge was a member of the personnel state and was involved in the process for the XXXX service appraisal, but the judge was not found to be acquainted with the complainant in this case and that the data protection issues which arose in this case have no connection with the personnel's senates assessment for XXXX.

Holding

As it was argued that the respondent while taking pictures that would allegedly violate the complainant's privacy rights under Article 55(3) GDPR, was under the context of judicial activity. The date the processing of the data took place by the respondent was a supervisory measure by the judicial administration carried out by the President of the BVwG in line with Section 3 Paragraph 1 BVwGG. The respondent had stated he did not act as a judicial official at the time of this data processing but an an administrative body bound by instructions. It was concluded in this case that even a broad interpretation of Article 55(3) GDPR would not cover this as judicial activity. Therefore, the complaint is not admissible in accordance with Article 130 Paragraph 2a B-VG in conjunction with Section 24a BVwGG and Sections 84 and 85 GOG, and the complaint must be rejected.

Comment

This case was fascinating as it was the first of its kind in the Administrative Court to deal with the interpretation of the term "judicial activity," as to whether in relation to Section 85(1) GOG, judicial activity specifically includes the production of notes and photographs from the office of an administrative court clerk that is suspected of suspicious misconduct .

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English Machine Translation of the Decision

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

Decision date

July 19, 2023

standard

B-VG Art 130 Paragraph 2a
B-VG Art 133 Paragraph 4
B-VG Art87 Paragraph 2
BVwGG §24a
BVwGG §3
GDPR Art55 Paragraph 3
GOG §84
GOG §85

B-VG Art. 130 today B-VG Art. 130 valid from February 1, 2019 last changed by Federal Law Gazette I No. 14/2019 B-VG Art. 130 valid from January 1, 2019 to January 31, 2019 last changed by Federal Law Gazette I No. 22/2018 B-VG Art. 130 valid from January 1, 2019 to May 24, 2018 last changed by Federal Law Gazette I No. 138/2017 B-VG Art. 130 valid from May 25, 2018 to December 31, 2018 last changed by Federal Law Gazette I No. 22/2018 B-VG Art by BGBl last amended by BGBl .1997 last amended by BGBl. No. 685/1988 B-VG Art. 130 valid from July 1st, 1976 to December 31st, 1990 last amended by BGBl .1976 last amended by BGBl. No. 215/1962 B-VG Art. 130 valid from December 25th, 1946 to July 17th, 1962 last amended by BGBl .1946 last changed by StGBl. No. 4/1945 B-VG Art. 130 valid from January 3, 1930 to June 30, 1934

B-VG Art. 133 today B-VG Art. 133 valid from January 1st, 2019 to May 24th, 2018 last changed by Federal Law Gazette I No. 138/2017 B-VG Art. 133 valid from January 1st, 2019 last changed by Federal Law Gazette I No. 22/2018 B-VG Art. 133 valid from May 25th, 2018 to December 31st, 2018 last changed by Federal Law Gazette I No. 22/2018 B-VG Art I No. 164/2013 B-VG Art by BGBl amended by BGBl. No. 211/1946 B-VG Art. 133 valid from December 19, 1945 to December 24, 1946 last amended by StGBl. No. 4/1945 B-VG Art. 133 valid from January 3, 1930 to June 30, 1934

B-VG Art. 87 today B-VG Art. 87 valid from January 1st, 2014 last changed by Federal Law Gazette I No. 51/2012 B-VG Art. 87 valid from January 1st, 2004 to December 31st, 2013 last changed by Federal Law Gazette I No. 100/2003 B-VG Art. 87 valid from July 1, 1994 to December 31, 2003 last changed by Federal Law Gazette No. 506/1994 B-VG Art. 87 valid from December 19, 1945 to June 30, 1994 last changed by StGBl. No. 4/1945 B-VG Art. 87 valid from January 3, 1930 to June 30, 1934

BVwGG § 24a today BVwGG § 24a valid from July 14th, 2023 last amended by BGBl

BVwGG § 3 today BVwGG § 3 valid from May 15, 2021 last changed by Federal Law Gazette I No. 87/2021 BVwGG § 3 valid from January 1, 2017 to May 14, 2021 last changed by Federal Law Gazette I No. 24/2017 BVwGG § 3 valid from January 1, 2014 to December 31, 2016

GOG § 84 today GOG § 84 valid from May 25th, 2018 last changed by BGBl from July 10, 1945 to December 31, 2004 repealed by Federal Law Gazette I No. 112/2003

GOG § 85 today GOG § 85 valid from May 25th, 2018 last changed by BGBl from August 1st, 1989 to December 31st, 2004 repealed by BGBl

saying

W211 2268942-1/16E

DECISION

The Federal Administrative Court decides through judge Mag.a Barbara Simma, LL.M. as chairperson as well as Mag. Peter Hammer and Mag.a Elisabeth Schmut, LL.M., as assessor and assessor on the complaint of XXXX, represented by XXXX regarding data processing by bodies of the President of XXXX on XXXX.2020: The Federal Administrative Court decides through the Judge Mag.a Barbara Simma, LL.M. as chairman and Mag. Peter Hammer and Mag.a Elisabeth Schmut, LL.M., as assessor and assessor on the complaint of the Roman XXXX, represented by Roman XXXX, regarding data processing by organs of the President of the Roman XXXX on Roman XXXX.2020:

A)

I. The complaint is rejected.Roman one. The complaint is rejected.

II. The complainant's application for reimbursement of costs is rejected in accordance with Section 85 Paragraph 5 GOG in conjunction with Section 24a BVwGG. Roman II. The complainant's application for reimbursement of costs is rejected in accordance with Section 85 Paragraph 5 GOG in conjunction with Section 24a BVwGG.

B)

The revision is permissible in accordance with Article 133, Paragraph 4, B-VG.The revision is permitted in accordance with Article 133, Paragraph 4, B-VG.

text

Reasons for the decision:

I. Process: Roman one. Process:

1.1. In a letter dated XXXX.2023, the complainant lodged a complaint with XXXX in accordance with Art. 130 Para. 2a B-VG against the President of XXXX (hereinafter: respondent).1.1. In a letter dated roman XXXX .2023, the complainant lodged a complaint with roman XXXX in accordance with Article 130, Paragraph 2 a, B-VG against the President of roman XXXX (hereinafter: respondent).

In summary, he stated that he had been working as a consultant for XXXX XXXX since XXXX .2014 and had been assigned to Judge XXXX since XXXX .2015. On XXXX, 2020, the respondent's organs secretly searched the complainant's office and used a private cell phone to take at least seven photographs of his workplace and the contents of the box used by XXXX, as well as handwritten notes about the files found and their contents. On XXXX, 2020, the respondent approved a disciplinary complaint against XXXX. The complainant lodged a complaint against the secret search on XXXX .2020 in a letter dated XXXX .2021. In it he stated in summary that he had been working as a consultant at Roman XXXX since 2014 and had been working for the judge since XXXX .2015 assigned to Roman XXXX. On Roman XXXX .2020, the respondent's organs secretly searched the complainant's office and used a private cell phone to take at least seven photographs of his workplace and the contents of the box used by Roman XXXX, as well as handwritten notes about the files found and their contents. On Roman XXXX, 2020, the respondent approved a disciplinary complaint against Roman XXXX. The complainant lodged a complaint against the secret search on Roman XXXX .2020 in a letter dated Roman XXXX .2021.

The complaint in question is directed against data processing in connection with the secret search of the complainant's office on XXXX.2020. When processing the BF's personal data, the respondent violated the BF's fundamental right to secrecy in accordance with Section 1 Paragraph 1 of the GDPR by not observing the principles in accordance with Articles 5 and 6 of the GDPR. The complaint in question was made in a timely manner because the complainant only found out after the oral hearing on XXXX, 2022 in connection with the complaint about measures what data processing had taken place in the course of the secret search. The photographs in question were stored on the searcher's private cell phone at least until XXXX, 2022. This violated the XXXX ICT usage guidelines. Furthermore, the search of the office violated the complainant's right to respect for his private life in accordance with Article 8 ECHR due to a lack of legal basis. In addition, Section 9 Paragraph 2 Letter n of the Federal Personnel Representation Act was violated. In addition, according to the provision of Section 89n of the Court Organization Act, which applies analogously to judges of the XXXX, the personal, automated processing of data relating to the content of the exercise of judicial office “outside of judicial proceedings” is only permitted in a generalized form. The data processing in question took place outside of disciplinary or criminal proceedings, which shows that it was not carried out on behalf of the independent, impartial and non-instructional disciplinary court, but exclusively on behalf of the President of XXXX, who is bound by instructions to the political department management. This interfered with the judicial independence of Judge XXXX. Before filing a disciplinary report, the respondent should have ordered an internal audit in accordance with Section 78a GOG in conjunction with Section 3 Paragraph 1 BVwGG and subsequently observed Section 89n GOG. In addition, the ban on bullying in Section 57a RStDG and the prohibition of control measures that affect human dignity in accordance with Section 76i RStDG and Section 79e BDG 1979 were violated. The complaint in question is directed against data processing in connection with the secret search of the office of the Complainant on Roman XXXX .2020. When processing the BF's personal data, the respondent violated the BF's fundamental right to secrecy in accordance with paragraph one, paragraph one, of the GDPR by not observing the principles set out in Articles 5 and 6 of the GDPR. The complaint in question was made in a timely manner because the complainant only found out after the oral hearing on Roman XXXX .2022 in connection with the complaint about measures what data processing had taken place in the course of the secret search. The photographs in question were stored on the searcher's private cell phone at least until Roman XXXX .2022. This violated Roman XXXX's ICT usage guidelines. Furthermore, the search of the office violated the complainant's right to respect for his private life in accordance with Article 8, ECHR, for lack of a legal basis. In addition, paragraph 9, paragraph 2, letter of the Federal Personnel Representation Act had been violated. In addition, according to the provision of Section 89 n, Court Organization Act, which applies analogously to judges of the Roman XXXX, the personal, automated processing of data relating to the content of the exercise of judicial office “outside of judicial proceedings” is only permitted in a generalized form. The data processing in question was carried out outside of disciplinary or criminal proceedings, which shows that it was not carried out on behalf of the independent, impartial and non-instructional disciplinary court, but exclusively on behalf of the President of the Roman XXXX, who is bound by instructions to the political department management. This interfered with the judicial independence of Judge Roman XXXX. Before filing a disciplinary report, the respondent should have ordered an internal audit in accordance with paragraph 78 a, GOG in conjunction with paragraph 3, paragraph one, BVwGG and subsequently observed paragraph 89 n, GOG. In addition, the ban on bullying in Section 57a, RStDG and the ban on control measures that affect human dignity in accordance with Section 76i, RStDG and Section 79e, BDG 1979 were violated.

1.2. In an objection of lack of jurisdiction, the complainant criticized the original allocation of the case in question to court department W221, as there was a suspicion that the complaint had not been allocated in accordance with the time of receipt as provided for in the distribution of business. After carrying out an appropriate investigation and obtaining a hearing from the respondent, the head of court department W221 declared her lack of jurisdiction and the complaint in question was assigned to the now responsible court department in the order in which it was received on XXXX.2023. 1.2. In an objection of lack of jurisdiction, the complainant criticized the original allocation of the case in question to court department W221, as there was a suspicion that the complaint had not been allocated in accordance with the time of receipt as provided for in the distribution of business. After conducting an appropriate investigation and obtaining a hearing from the respondent, the head of court department W221 declared that she lacked jurisdiction and the complaint in question was assigned to the now responsible court department in the order in which it was received on Roman XXXX .2023.

1.3. In a letter dated XXXX .2023 (received on XXXX 2023), the respondent provided a substantive statement on the complaint in question. In it he essentially stated that the complainant was absent from his workplace XXXX XXXX from XXXX 2020 to XXXX .2020. For this reason, a consultant was commissioned by the head of the field office to check whether there were any open orders regarding the court departments assigned to the complainant and, if necessary, to complete them. Some serious deficiencies were discovered that would have made representation impossible. The head of the branch office therefore arranged for order to be restored and the deficiencies to be documented by means of official supervision by a speaker and an administrative trainee who was working at the court at the time. The inspection by the branch manager and his deputy on XXXX.2020 was also a supervisory measure. A complaint against the measure was rejected as inadmissible because it was not a search within the meaning of the established jurisprudence of the Constitutional Court and there was no interference with the complainant's legal sphere. In the present case, according to Section 85 (1) GOG, a prerequisite for the admissibility of the complaint is a violation of the fundamental right to data protection by an organ that acts in the exercise of its judicial activity in matters of jurisdiction in civil law matters and the administration of justice to be carried out in the Senate. However, this is not the case here, as there is no connection with a court decision or legal proceedings. Service supervision measures involve monocratic judicial administration, in which the President of XXXX acts as an administrative body bound by instructions. There is therefore no “judicial activity”. The same applies to the disciplinary steps subsequently taken against the complainant. In addition, the processing and use of the data collected was suitable and necessary for the exercise of official supervision and there was a corresponding legal basis. The respondent requested the rejection and, if necessary, the dismissal of the complaint.1.3. In a letter dated Roman XXXX .2023 (received on Roman XXXX 2023), the respondent provided a substantive statement on the complaint in question. In it he essentially stated that the complainant had been absent from his workplace from Roman XXXX 2020 to Roman XXXX .2020. For this reason, a consultant was commissioned by the head of the field office to check whether there were any open orders regarding the court departments assigned to the complainant and, if necessary, to complete them. Some serious deficiencies were discovered that would have made representation impossible. The head of the branch office therefore arranged for order to be restored and the deficiencies to be documented by means of official supervision by a speaker and an administrative trainee who was working at the court at the time. The inspection by the branch manager and his deputy on Roman XXXX .2020 was also a supervisory measure. A complaint against the measure was rejected as inadmissible because it was not a search within the meaning of the established jurisprudence of the Constitutional Court and there was no interference with the complainant's legal sphere. In the present case, according to paragraph 85, paragraph one, GOG, a prerequisite for the admissibility of the complaint is a violation of the fundamental right to data protection by an organ that acts in the exercise of its judicial activity in matters of jurisdiction in civil law matters and the administration of justice to be carried out in senates . However, this is not the case here, as there is no connection with a court decision or legal proceedings. Service supervision measures involve monocratic judicial administration, in which the President of the Roman XXXX acts as an administrative body bound by instructions. There is therefore no “judicial activity”. The same applies to the disciplinary steps subsequently taken against the complainant. In addition, the processing and use of the data collected was suitable and necessary for the exercise of official supervision and there was a corresponding legal basis. The respondent requested that the complaint be rejected and, if necessary, dismissed.

1.4. In his statement dated XXXX.2023, the complainant's first point was a rejection of the head of court department W211, and thus the presiding judge in the proceedings in question, and justified this in summary by saying that it could not be ruled out that the respondent would take the case to Zl. XXXX [explanatory: concerning XXXX ] was deliberately assigned to the head of the court department W211 in order to prevent it from being assigned to the court department W176. A possible motive could be that the respondent expected a more favorable decision for him from the head of court department W211. This apparent bias is confirmed by the fact that the head of the court department W211 hastily and [without] any legal necessity stated in her notice of lack of jurisdiction [with regard to the XXXX procedure] of XXXX .2023 that the interference with the fixed distribution of business was “due to an oversight” based on. There are good reasons to doubt the respondent's claim in this regard. For these reasons, it cannot be ruled out that the head of court department W211 lacked the necessary impartiality to the detriment of the complainant. In addition, the head of the court department W211, as a former member of the Personnel Senate, was involved in retaliatory measures XXXX, which would also affect the subject matter of the present complaint, because she was involved in a decidedly unlawful decision to conduct an oral hearing in violation of Article 6 ECHR, because Both the legal representative and the two confidants [of XXXX ] were excluded from the negotiation [session of the Personnel Senate]. 1.4. In his statement dated Roman XXXX .2023, the complainant's first point was a rejection of the head of court department W211, and thus the presiding judge in the proceedings in question, and justified this in summary by saying that it could not be ruled out that the respondent would take the case to Zl .roman XXXX [explanatory: concerning Roman XXXX] was deliberately assigned to the head of the court department W211 in order to prevent it from being assigned to the court department W176. A possible motive could be that the respondent expected a more favorable decision for him from the head of court department W211. This apparent bias is confirmed by the fact that the head of the court department W211 hastily and [without] any legal necessity stated in her notice of lack of jurisdiction [with regard to the Roman XXXX procedure] dated Roman XXXX .2023 that the interference with the fixed distribution of business “on one by mistake”. There are good reasons to doubt the respondent's claim in this regard. For these reasons, it cannot be ruled out that the head of court department W211 lacked the necessary impartiality to the detriment of the complainant. In addition, the head of the court department W211, as a former member of the Personnel Senate, was involved in retaliatory measures in Roman XXXX, which would also affect the subject matter of the present complaint, because she was involved in a decidedly unlawful decision to conduct an oral hearing in violation of Article 6, ECHR, because both the legal representative and the two confidants [of the Roman XXXX ] were excluded from the negotiation [session of the Personnel Senate].

In the matter itself, the complainant stated that the question of whether XXXX (head of the field office) took the photos in question with his work or private smartphone was recorded in the minutes of XXXX .2022, W213 2248968-1, [enclosed]. that – in summary – the witness showed his private cell phone there. The witness showed 7 photos taken in the complainant's room on XXXX.2020. Furthermore, reference is made to the complaint and its attachments. It is the responsibility of the ECJ to answer the question of whether there is “judicial activity” in the present context. Contrary to the respondent's opinion, there is no need for a "connection with a court decision or legal proceedings" because the ECJ expressly stated in C-245/20, paragraph 34, that there is no limitation to the processing of personal data. “which would be carried out by the courts in the context of specific legal cases”. In addition, this judgment affected the processing of personal data by the monocratic judicial administration. In the matter itself, the complainant stated that on the question of whether Roman XXXX (head of the field office) took the photos in question with his work or his private smartphone, in the minutes of Roman XXXX .2022, W213 2248968-1, [enclosed ] it was recorded that - in summary - the witness showed his private cell phone there. The witness showed 7 photos taken in the complainant's room on Roman XXXX .2020. Furthermore, reference is made to the complaint and its attachments. It is the responsibility of the ECJ to answer the question of whether there is “judicial activity” in the present context. Contrary to the respondent's opinion, there is no need for a "connection with a court decision or legal proceedings" because the ECJ expressly stated in C-245/20, paragraph 34, that there is no limitation to the processing of personal data. “which would be carried out by the courts in the context of specific legal cases”. In addition, this judgment affected the processing of personal data by the monocratic judicial administration.

II. The XXXX considered the appeal: Roman II. The Roman XXXX considered the appeal:

1. Findings:

The complainant is in an active public service relationship with the federal government (representative of XXXX) and is assigned to XXXX's service. The complainant is in an active public service relationship with the federal government (representative of Roman XXXX) and is assigned to Roman XXXX for service.

From XXXX .2020 to XXXX .2020, the complainant (initially until XXXX .2020 due to illness and subsequently from XXXX 2020 to XXXX .2020 due to a medical order submitted in connection with the COVID-19 pandemic). confirmation) not present at his physical workplace XXXX. During this period, in the course of representing the complainant, his file management and procedural administration were criticized. From Roman XXXX .2020 to Roman XXXX .2020, the complainant was (initially until Roman XXXX .2020 due to illness and subsequently from Roman XXXX 2020 to as of Roman XXXX .2020 due to an order following a medical certificate submitted in connection with the COVID-19 pandemic) not present at his physical workplace Roman XXXX. During this period, in the course of representing the complainant, his file management and procedural administration were criticized.

Subsequently, on XXXX, 2020, XXXX and Chairman of Chamber XXXX of XXXX, as well as his deputy XXXX, carried out an inspection of the complainant's unlocked office in his absence. In the course of this inspection, file covers of files found were examined and the number of files was summarized by hand in a list by the deputy chairman of the chamber. Furthermore, in the course of the investigation, the chairman of the chamber took seven photographs of the complainant's workplace and of the files located there. Subsequently, Roman XXXX and the chairman of the Chamber Roman XXXX of Roman XXXX, as well as his deputy Roman XXXX, carried out an inspection of the complainant's unlocked office in his absence on Roman XXXX.2020. In the course of this inspection, file covers of files found were examined and the number of files was summarized by hand in a list by the deputy chairman of the chamber. Furthermore, in the course of the investigation, the chairman of the chamber took seven photographs of the complainant's workplace and of the files located there.

The complainant became aware of the review on XXXX .2020 on XXXX .2021 by being given a statement from the authority dated XXXX .2020 in the oral hearing before XXXX in the proceedings on Zl. W257 2235067-1. However, he only became aware of the data processing during the oral hearing on XXXX.2022, which was carried out in the proceedings on Zl. W213 2248968-1, in which the handwritten notes and the seven photographs mentioned were presented. In 2020, the review took place on Roman XXXX .2021 by providing him with a statement from the authority from Roman XXXX .2020 in the oral hearing before Roman XXXX in the proceedings on Zl. W257 2235067-1. However, he only became aware of the data processing during the oral hearing on Roman XXXX .2022 in the proceedings on Zl. W213 2248968-1, in which the handwritten notes and the seven photographs mentioned were presented.

2. Assessment of evidence:

The findings result from the content of the parts of the file submitted by the complainant and the respondent, the content of which is undisputed. The fact that the complainant became aware of the data processing in question in the course of the oral hearing on XXXX .2022 in the case of Zl. The respondent did not dispute the complainant's submissions in this regard. The findings arise from the content of the parts of the file submitted by the complainant and the respondent, the content of which is undisputed. The fact that the complainant became aware of the data processing in question in the course of the oral hearing on Roman XXXX .2022, which was carried out in the proceedings on Zl. The respondent did not dispute the complainant's submissions in this regard.

3. Legal assessment:

To A)

3.1. Timeliness:

Regarding the timeliness of the complaint, it is noted that the complainant became aware of the data processing in question on XXXX.2022. The complaint filed on XXXX.2023 was therefore filed within the one-year complaint period from the time the process became known in accordance with Section 85 Para. 4 GOG and was therefore filed in a timely manner. With regard to the timeliness of the complaint, it is noted that the complainant became aware of the data processing in question on XXXX.2022 . The complaint filed on Roman XXXX .2023 was therefore filed within the one-year complaint period from the time the matter became known in accordance with Section 85, Paragraph 4, GOG and therefore within the deadline.

3.2. Legal judge

In his submission dated XXXX 2023, the complainant stated in summary that an “inadmissible interference with the fixed distribution of business” could not be ruled out when assigning the procedure in question. In a submission dated Roman XXXX 2023, the complainant stated in summary that an “inadmissible interference with the fixed distribution of business” could not be ruled out when assigning the procedure in question.

As a result, the assignment log of the DAS assignment group was evaluated, which shows that on XXXX .2023, in addition to the complainant's complaint, three further complaints regarding the numbers XXXX were logged. As a result, the assignment log of the DAS assignment group was evaluated, from which It turns out that on Roman XXXX .2023, in addition to the complainant's complaint, three further complaints regarding the numbers Roman XXXX were recorded.

The investigation carried out revealed that the complaint about XXXX was submitted via ERV at XXXX p.m. The complaint regarding XXXX was submitted via ERV at XXXX p.m. The complainant's complaint regarding XXXX was filed via ERV at XXXX p.m. The complaint about XXXX was submitted by the data protection authority at XXXX p.m. via ELAK. The investigation procedure carried out revealed that the complaint about Roman XXXX was submitted at Roman XXXX p.m. via ERV. The complaint about Roman XXXX was submitted via ERV at Roman XXXX. The complainant's complaint to Roman XXXX was filed via ERV at Roman XXXX. The complaint about Roman XXXX was submitted by the data protection authority at Roman XXXX via ELAK.

With the hearing of the parties from XXXX 2023, the authority concerned was asked to explain in writing within a period of two weeks from delivery of this letter how the procedure for allocating an incoming complaint is carried out and why the complaints regarding XXXX are not based on the ERV protocol The date of submission was assigned (the assignment of file XXXX was due to the later receipt in accordance with the distribution of business and was not to be included in the statement). With the hearing of the parties from Roman XXXX 2023, the authority concerned was requested to respond in writing within a period of two weeks from delivery of this letter to explain how the procedure for allocating an incoming complaint is carried out and why the complaints regarding Roman XXXX were not assigned according to the time at which they were submitted based on the ERV protocol (the allocation of the Roman XXXX file was in any case based on the distribution of business due to the fact that it was received later). not to be included in the statement).

In a statement dated XXXX .2023, received on XXXX .2023, the authority concerned complied with the request and stated in summary that the complaint in question was not initially assigned to a court department after the distribution of business, but immediately after it was received in the electronic mailbox of the Office of the President had been transmitted. The responsible official assumed that there would be a decision-complaint procedure. Since the correct procedure was assumed in relation to the complaint in question, further procedures received were recorded in the office in the meantime and court departments were assigned. Subsequently, the files attached to the complaint were examined in the legal department and it was determined that it was a complaint within the meaning of Art. 130 Para. 2a B-VG, which was then immediately sent to the mailbox allocation@bvwg.gv .at was (re)transmitted and a request was made for assignment to a court department, citing the correct legal basis. With a statement dated Roman XXXX .2023, received on Roman XXXX .2023, the authority concerned complied with the request and stated in summary that the complaint in question was not initially assigned to a court department after the distribution of business, but immediately after it was received in the office's electronic mailbox from the President. The responsible official assumed that there would be a decision-complaint procedure. Since the correct procedure was assumed in relation to the complaint in question, further procedures received were recorded in the office in the meantime and court departments were assigned. Subsequently, the files attached to the complaint were examined in the legal department and it was determined that it was a complaint within the meaning of Article 130, paragraph 2 a, B-VG, which was then immediately sent to the mailbox allocation@bvwg. gv.at was (re)transmitted and a request was made for assignment to a court department, citing the correct legal basis.

According to Section 22 of the Division of Business 2023, the legal cases received must first be recorded in the office. The order of logging for legal cases received electronically depends on the time of receipt and for legal cases received by post or other physical means (e.g. by messenger) on the time of actual receipt at the office and, if necessary, on the alphabetical order of the family or last name or company name complaining or applying parties, in the case of the same family or last name, in the alphabetical order of the first names and, in the case of the same first names, in descending order of the age of the persons concerned (paragraph 1). The legal cases received are first sorted according to the individual legal areas after they have been recorded in the office (paragraph 2). The legal cases are then further distributed within each legal area to the individual allocation groups - if necessary separately according to headquarters and branch offices (paragraph 3). According to paragraph 22, the business distribution 2023, the legal cases received must first be recorded in the office. The order of logging for legal cases received electronically depends on the time of receipt and for legal cases received by post or other physical means (e.g. by messenger) on the time of actual receipt at the office and, if necessary, on the alphabetical order of the family or last name or company name complaining or applying parties, in the case of the same family or last name, in the alphabetical order of the first names and, in the case of the same first names, in descending order of the age of the persons concerned (paragraph 1). The legal cases received are first sorted according to the individual legal areas after they have been recorded in the office (paragraph 2). The cases are then further distributed within each legal area to the individual assignment groups - if necessary separately according to headquarters and branch offices (paragraph 3).

According to Section 23 Paragraph 2 of the Division of Business 2023, unless otherwise specified in this division of business (e.g. separate allocation of annex cases or allocation due to bias, omissions in the allocation, advance allocation or allocation block), legal cases that fall within the jurisdiction of several court departments at the headquarters or in the field offices, are assigned separately for each allocation group to the responsible court departments one after the other, in ascending order of their court department numbers, starting with the lowest. If further allocation in the ascending order of the court department numbers is no longer an option, then the allocation must begin again in the order mentioned (new round of allocation) and continue in this way until all legal cases have been assigned to the responsible court departments. According to Paragraph 23, paragraph 2, of the distribution of business 2023, unless otherwise specified in this distribution of business (e.g. separate allocation of annex cases or allocation due to bias, omissions in the allocation, advance allocation or allocation block), legal cases that fall within the jurisdiction of several court departments at the headquarters or in the field offices, are assigned separately for each allocation group to the responsible court departments one after the other, in ascending order of their court department numbers, starting with the lowest. If further allocation in ascending order of court department numbers is no longer an option, then the allocation must be started again in the order mentioned (new round of allocation) and continued in this way until all legal cases have been assigned to the responsible court departments.

Since the logging order for electronically received legal cases is based on the time of receipt and, based on this, the (general) allocation to the court departments for each allocation group is made in ascending order of the court department numbers, the legal case in question, since it took place on XXXX .2023, would have been before the XXXX case but after the case XXXX was received, before the case XXXX and after the case XXXX must be recorded in the clerk's office and assigned to the court department W211. Since the order of logging for legal cases received electronically depends on the time at which they were received and, based on this, the (general) allocation to the court departments for each allocation group is made in ascending order of the court department numbers, the legal case in question, since it took place on Roman XXXX .2023, would have preceded the legal case Roman XXXX but received after the Roman XXXX case, before the Roman XXXX case and after the Roman XXXX case must be recorded in the office and assigned to the court department W211.

Accordingly, a plea of lack of jurisdiction was asserted by court division W221 on XXXX .2023, and the matter in question was – correctly – assigned to court division W211 on XXXX .2023. Accordingly, an objection of lack of jurisdiction was asserted by the court division W221 on Roman XXXX .2023, and the matter in question was assigned - correctly - to the court division W211 on Roman XXXX .2023.

The complainant's argument in his statement dated XXXX .2023 that the original assignment of the case to court department W221 was consciously made by the respondent can remain moot, as the case has now been assigned to the correct court department based on the distribution of business. The complainant's argument in his statement dated Roman XXXX .2023 that the original assignment of the case to court department W221 was consciously made by the respondent can remain undecided, as the case has now been assigned to the correct court department based on the distribution of business.

3.3. Bias of the presiding judge:

In his statement of XXXX .2023, the complainant complains that the presiding judge was biased based on an assessment in the notice of lack of jurisdiction for the procedure No. XXXX to the effect that the presiding judge described the error in the assignment by the respondent as “based on an oversight”. This assessment of the error in the assignment in the objection of lack of jurisdiction is based on a - free - assessment of the results of the proceedings by the presiding judge after conducting an investigation. At the time the objection of lack of jurisdiction was raised, no substantiated evidence emerged in the proceedings to indicate that the respondent's allocation error was not due to an oversight, which is why no further investigations were necessary. This assessment is ultimately of no importance for the present procedure because, as under point 3.2. stated, the statutory judges provided for in the distribution of responsibilities have now been assigned to the complaint procedure in question. In his statement dated Roman XXXX .2023, the complainant complains that the presiding judge was biased due to an assessment in the notice of lack of jurisdiction for the procedure Zl. Roman XXXX to the effect that the presiding judge described the error in the assignment by the respondent as being “based on an oversight”. titled. This assessment of the error in the assignment in the objection of lack of jurisdiction is based on a - free - assessment of the results of the proceedings by the presiding judge after conducting an investigation. At the time the objection of lack of jurisdiction was raised, no substantiated evidence emerged in the proceedings to indicate that the respondent's allocation error was not due to an oversight, which is why no further investigations were necessary. This assessment is ultimately of no importance for the present procedure because, as under point 3.2. stated, the statutory judges provided for in the distribution of responsibilities have now been assigned to the complaint procedure in question.

In addition, the complainant argues that the presiding judge, as a former member of the Personnel Senate, was involved in retaliatory measures against XXXX - as stated in the statement. In addition, the complainant argues that the presiding judge, as a former member of the Personnel Senate, was involved in retaliatory measures against Roman XXXX, as stated in the statement.

It is correct that the presiding judge was a member of the Personnel Senate until XXXX 2021 and as such was involved in a process for the XXXX service appraisal. However, the presiding judge is neither personally nor professionally acquainted with the complainant in the present proceedings, nor have there been any points of contact at a professional level, for example in the course of situations within the context of court organization. Likewise, the complainant cannot be considered to have been involved in the service appraisal process regarding XXXX, which was conducted at a time when the presiding judge was a member of the Personnel Senate. Data protection issues that may arise from photos taken as part of an inspection in the complainant's office in XXXX have no connection with the procedure for the performance evaluation of XXXX by the Personnel Senate. It is correct that the presiding judge was a member of the Personnel Senate until Roman XXXX .2021 and as such was involved in a process for the performance appraisal of Roman XXXX. However, the presiding judge is neither personally nor professionally acquainted with the complainant in the present proceedings, nor have there been any points of contact at a professional level, for example in the course of situations within the context of court organization. Likewise, the complainant cannot be considered to have been involved in the performance appraisal process regarding Roman XXXX, which was conducted at a time when the presiding judge was a member of the Personnel Senate. Data protection issues that may arise from photos taken as part of an inspection in the complainant's office in Roman XXXX have no connection with the procedure for the performance assessment of Roman XXXX by the Personnel Senate.

Accordingly, there is neither subjective nor objective bias on the part of the presiding judge.

3.4. In the matter:

3.4.1. According to Art. 87 Para. 2 B-VG, a judge is responsible for all judicial matters to which he or she is entitled in accordance with the law and the distribution of responsibilities, with the exclusion of judicial administrative matters that are not handled by senates or commissions in accordance with the law are carried out in the exercise of his/her judicial office.3.4.1. According to Article 87, paragraph 2, B-VG, a judge is responsible for discharging all judicial matters to which he or she is entitled in accordance with the law and the distribution of responsibilities, with the exclusion of judicial administrative matters that are not dealt with by senates or commissions in accordance with the law are carried out in the exercise of his/her judicial office.

According to Art. 130 Para. 2a B-VG, the administrative courts hear complaints from persons who are challenged by the respective administrative court in the exercise of its jurisdiction in their rights in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and the repeal of Directive 95/46/EC (General Data Protection Regulation) - GDPR, OJ No. L 119 of May 4, 2016 p. 1, claim to have been violated. According to Article 130, paragraph 2 a, B-VG, the administrative courts recognize complaints from persons who are challenged by the respective administrative court in the exercise of its jurisdiction in their rights in accordance with Regulation (EU) 2016/679 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 the Directive 95/46/EC (General Data Protection Regulation) – GDPR, OJ No. L 119 of May 4, 2016 p. 1, claim to have been violated.

According to Section 3 Paragraph 1 XXXX, the President heads the XXXX, exercises official supervision over the entire staff and conducts the judicial administrative business for the XXXX, insofar as these are not to be carried out by other bodies on the basis of this or other federal laws. According to Paragraph 3, paragraph one, Roman XXXX, the President heads the Roman XXXX, exercises official supervision over the entire staff and conducts the judicial administrative business for the Roman XXXX, insofar as these are not to be carried out by other bodies on the basis of this or other federal laws are.

According to Section 3 Paragraph 2 BVwGG, the President is supported in his/her tasks in accordance with the division of business for judicial administrative matters to be issued by him/her by the Vice President, the Vice President, the Chamber Chairmen and, if necessary, by other members of the XXXX According to paragraph 3, paragraph 2, BVwGG, the President is responsible for his/her tasks in accordance with the division of business for judicial administrative matters to be issued by him/her, by the Vice President, the Vice President, the Chamber Chairmen and, if necessary, other members of the Roman XXXX supported and represented.

According to § 24a BVwGG, in the case of complaints alleging violation of rights in accordance with Regulation (EU) 2016/679 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 (General Data Protection Regulation) - GDPR, OJ No. L 119 of May 4, 2016 p. 1, Sections 84 and 85 GOG accordingly. According to paragraph 24 a, BVwGG applies to complaints about alleged violation of rights in accordance with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of such data and on the repeal of Directive 95/46/EC (General Data Protection Regulation) - GDPR, OJ No. L 119 of 4 May 2016 p. 1, paragraphs 84 and 85 GOG accordingly.

Section 84 of the Court Organization Act (GOG) reads: Section 84 of the Court Organization Act (GOG) reads:

“In the case of data processing in the context of judicial activity in matters of jurisdiction in civil law matters and the administration of justice to be carried out in senates, the provisions are based on Articles 12 to 22 and Article 34 of Regulation (EU) 2016/679 on the protection of natural persons Processing of personal data, on the free movement of data and the repeal of Directive 95/46/EC (General Data Protection Regulation), OJ No. L 119 of May 4, 2016, p. 1 (hereinafter: GDPR), and which arises from the right to Information, correction and deletion of the rights and obligations arising under Section 1 of the DSG as well as their enforcement in accordance with the procedural laws and the regulations based thereon as well as the provisions of this Federal Act." "In the case of data processing within the scope of judicial activity in matters of jurisdiction in civil law matters and in senate matters The judicial administration to be carried out is based on Articles 12 to 22 and Article 34 of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (data protection Basic Regulation), OJ No. L 119 of May 4, 2016 p. 1 (hereinafter: GDPR), and the rights and obligations resulting from the right to information, correction and deletion according to paragraph one of the DSG as well as their enforcement according to the procedural laws and the regulations based thereon as well as the provisions of this federal law.”

According to § 85 GOG, anyone whose fundamental right to data protection has been violated by a body that acts in the exercise of its judicial activity in matters of jurisdiction in civil law matters and the administration of justice to be carried out in senates can request the federal government to establish this violation (para . 1). The higher court is responsible for deciding on this complaint. If the complaint concerns a violation by a body of the Supreme Court, the Supreme Court is responsible for making a decision. The court decides in the proceedings other than disputes, unless otherwise specified below (para. 2). The complaint must state and justify what the complainant sees as a violation of his/her rights. The decision or the corresponding process that gave rise to the complaint must be described precisely. The day on which the person concerned became aware of the decision or process must be stated (paragraph 3). When filing a complaint, the person affected can only be represented by a lawyer. The complaint must be submitted to the court responsible under paragraph 2 within one year of the day on which the person concerned became aware of the decision or process. After three years after the decision or process, the determination can no longer be requested (paragraph 4). The court must declare whether the alleged infringement has taken place and, if necessary, issue the necessary instructions to the competent court. An appeal to the Supreme Court is permissible against the decision, provided that it was not made by the Supreme Court anyway and the decision depends on the solution of a legal question that is of considerable importance for maintaining legal unity, legal certainty or legal development. The party must be represented by a lawyer for the purpose of filing the appeal and in the further proceedings. In an affirmative decision, the federal government is to be ordered to reimburse the complainant for the costs of the appeal (paragraph 5). According to paragraph 85, GOG, anyone who is authorized by an organ that, in the exercise of its judicial activity, in matters of jurisdiction in civil law matters and in senates judicial administration to be carried out, the fundamental right to data protection has been violated, request the federal government to establish this violation (paragraph one). The higher court is responsible for deciding on this complaint. If the complaint concerns a violation by a body of the Supreme Court, the Supreme Court is responsible for making a decision. The court decides in the proceedings other than disputes, unless otherwise specified below (paragraph 2). The complaint must state and justify what the complainant sees as a violation of his/her rights. The decision or the corresponding process that gave rise to the complaint must be described precisely. The day on which the person concerned became aware of the decision or process must be stated (paragraph 3). When filing a complaint, the person affected can only be represented by a lawyer. The complaint must be lodged with the court responsible under paragraph 2 within one year of the day on which the person concerned became aware of the decision or process. After three years after the decision or process, the determination can no longer be requested (paragraph 4). The court must declare whether the alleged infringement has taken place and, if necessary, issue the necessary instructions to the competent court. An appeal to the Supreme Court is permissible against the decision, provided that it was not made by the Supreme Court anyway and the decision depends on the solution of a legal question that is of considerable importance for maintaining legal unity, legal certainty or legal development. The party must be represented by a lawyer for the purpose of filing the appeal and in the further proceedings. In an affirmative ruling, the federal government must be ordered to reimburse the complainant for the costs of the appeal (paragraph 5).

3.4.2. According to Article 55 (3) GDPR, the supervisory authorities are not responsible for supervising processing carried out by courts in the context of their judicial activities.3.4.2. According to Article 55, paragraph 3, GDPR, the supervisory authorities are not responsible for supervising processing carried out by courts in the context of their judicial activities.

In this regard, the European Court of Justice (ECJ) stated in its judgment of March 24, 2022 on Zl. C-245/20 that “the reference in Article 55 Para “Activity” must be understood in the context of the Regulation as not being limited to the processing of personal data carried out by the courts in the context of specific legal cases, but in a broader sense covering all processing operations carried out by the courts in the context of specific legal cases in the context of its judicial activities, so that processing operations are excluded from the jurisdiction of the supervisory authority, the control of which by that authority could directly or indirectly affect the independence of the members or the decisions of the courts." The European Court of Justice (ECJ) stated this in its judgment of March 24, 2022 to Zl. C-245/20 that “the reference in Article 55, paragraph 3, of Regulation 2016/679 to the processing carried out by courts “in the context of their judicial activity” is to be understood in the context of the Regulation [is] that it is not limited to the processing of personal data carried out by the courts in the context of specific legal cases, but covers more broadly all processing operations carried out by the courts in the context of their judicial activities, so that processing operations of are excluded from the jurisdiction of the supervisory authority, the control of which by that authority could directly or indirectly affect the independence of the members or the decisions of the courts."

According to Article 87 Paragraph 2 B-VG, a judge is “exercising his/her judicial office” and is therefore exempt from instructions in accordance with Paragraph 1 when he/she is carrying out “judicial business”. Judicial administration, on the other hand, includes all law enforcement tasks whose content ensures the functioning of the judiciary. The administration of justice also includes service supervision (VfSlg 7753). Disciplinary matters represent an investigative activity and are therefore to be carried out collegially, although they materially represent the administration of justice (VfGH June 14, 2018, G 29/2018). In the judicial administration, which is carried out monocratically by judges, they do not act in the exercise of their judicial office, but as administrative bodies bound by instructions (OGH December 15, 1997, 1 Ob 41/97d). However, if judicial administration tasks are to be carried out collegially, the judges exercise their “judicial office” and act without instructions (VfGH June 14, 2018, G 29/2018; VwGH February 1, 1989, 88/01/0199 ). The legislature must determine in what form – monocratic or collegial – judicial administration is to be carried out. In the case of monocratic jurisdiction, there is administration (Muzak, B-VG6 Art 87 R 2 f). According to Article 87, paragraph 2, B-VG, a judge is “in the exercise of his/her judicial office” and is therefore in accordance with . Paragraph one, without instructions if he:she carries out “judicial business”. Judicial administration, on the other hand, includes all law enforcement tasks whose content ensures the functioning of the judiciary. The administration of justice also includes service supervision (VfSlg 7753). Disciplinary matters represent an investigative activity and are therefore to be carried out collegially, although they materially represent the administration of justice (VfGH June 14, 2018, G 29/2018). In the judicial administration, which is carried out monocratically by judges, they do not act in the exercise of their judicial office, but as administrative bodies bound by instructions (OGH December 15, 1997, 1 Ob 41/97d). However, if judicial administration tasks are to be carried out collegially, the judges exercise their “judicial office” and act without instructions (VfGH June 14, 2018, G 29/2018; VwGH February 1, 1989, 88/01/0199 ). The legislature must determine in what form – monocratic or collegial – judicial administration is to be carried out. In the case of monocratic responsibility, there is administration (Muzak, B-VG6 Article 87, R 2 f).

3.4.3. It follows:

The decisive factor for the jurisdiction of the adjudicating Senate to decide on the complaint in question is therefore the question of whether the alleged violation of the complainant's data protection rights was carried out by the respondent in the context of a judicial activity. This must be denied objectively:

The review on XXXX.2020, during which the data processing complained about was carried out, was a supervisory measure. This is part of the judicial administration and is exercised monocratically by the President of the BVwG in accordance with Section 3 Paragraph 1 BVwGG. In accordance with Section 3 Paragraph 2 BVwGG, he is (also) represented and supported by the chamber chairmen. The review on Roman XXXX .2020, in the course of which the data processing complained about was carried out, was a supervisory measure. This is part of the judicial administration and is exercised monocratically by the President of the BVwG in accordance with paragraph 3, paragraph one, BVwGG. In accordance with paragraph 3, paragraph 2, BVwGG, he is (also) represented and supported by the chamber chairmen.

As the respondent correctly states in his submission, the chairman of the chamber representing him or his deputy did not act in the exercise of judicial activity or judicial office during the review on XXXX .2020, but as an administrative body bound by instructions. As the respondent correctly states in his submission explains, the chairman of the chamber representing him or his deputy did not act in the exercise of judicial activity or judicial office during the review on Roman XXXX .2020, but as an administrative body bound by instructions.

While the complainant is right in this regard, the ECJ in case C-245/20, judgment of March 24, 2020, does not limit the processing of data by courts “as part of their judicial activity” to those processed by the courts in In the context of specific legal cases (see above and RZ 34), not all data processing by courts falls into this category: for a better understanding of the broad (see also RZ 34) interpretation of the term " Judicial activity” is based on the examples from the opinion of Advocate General Michal Bobek, who summarized in RZ 89ff. that in practice some of the activities of the courts would be considered borderline cases, which may not be directly related to a judicial decision in one would relate to a specific case, but could directly or indirectly influence the legal proceedings. An example is the assignment of cases by a court president, provided that the legal system provides for discretion in this regard. If we follow a narrow interpretation of what is referred to as “judicial activity”, it is unlikely that this activity would fall under Article 55 (3) GDPR. A supervisory authority would then be responsible for monitoring the processing of personal data as part of this activity. However, such a decision has no administrative character. In fact, it is hardly disputed that the assignment of a case to a reporting judge is per se a judicial task and that interference in this task could have a significant impact on judicial independence. Other activities that would belong to the same category include: B. the design, seating arrangement or management of the courtrooms during which the court sessions would take place, security measures for visitors, the parties and their representatives, video recordings or, if necessary, even video streaming of sessions, special access Press about meetings or even the information about meetings and judgments available on a court's website (NB: see also VwGH, August 9, 2021, Ra 2019/04/0106 on anonymization). These activities (mentioned only as examples) are neither purely judicial in the sense that they are directly related to the outcome of a specific legal case, nor are they purely administrative activities. In some cases, these activities could, under certain circumstances, have an impact on the judicial independence of a court. While the complainant is right in this regard, the ECJ in case C-245/20, judgment of March 24, 2020, processing of data by courts “In the context of their judicial activity” is not limited to those carried out by the courts in the context of specific legal cases (see above and RZ 34), but not all data processing by courts falls into this category: for a better understanding of - for protection Due to the broad (see also RZ 34) interpretation of the term “judicial activity” required by the independence of the courts, reference is made to the examples from the opinion of Advocate General Michal Bobek, who summarized in RZ 89ff that in practice some of the activities of the courts would be among the borderline cases which would perhaps not be directly related to a court decision in a specific case, but which could directly or indirectly influence the legal proceedings. An example is the assignment of cases by a court president, provided that the legal system provides for discretion in this regard. If we follow a narrow interpretation of what is described as “judicial activity”, it is unlikely that this activity would fall under Article 55, Paragraph 3, GDPR. A supervisory authority would then be responsible for monitoring the processing of personal data as part of this activity. However, such a decision has no administrative character. In fact, it is hardly disputed that the assignment of a case to a reporting judge is per se a judicial task and that interference in this task could have a significant impact on judicial independence. Other activities that would belong to the same category include: B. the design, seating arrangement or management of the courtrooms during which the court sessions would take place, security measures for visitors, the parties and their representatives, video recordings or, if necessary, even video streaming of sessions, special access Press about meetings or even the information about meetings and judgments available on a court's website (NB: see also VwGH, August 9, 2021, Ra 2019/04/0106 on anonymization). These activities (mentioned only as examples) are neither purely judicial in the sense that they are directly related to the outcome of a specific legal case, nor are they purely administrative activities. In some cases, these activities could, in certain circumstances, affect the judicial independence of a court.

At the other end of the spectrum, there are, at first glance, purely administrative tasks such as the maintenance of court buildings, the contracting out of restoration services or the normal maintenance and procurement management of a facility and a place of work. But borderline cases could also occur within this category. The payment of judges' salaries is a prime example of this. If this task were limited to the purely mechanical processing of fixed payroll statements, it would essentially be an administrative activity. Supervision of this activity could therefore fall under the responsibility of the supervisory authority designated in accordance with Article 51 (1) GDPR. However, as soon as a discretionary element is added, such as deciding on the type of vacation or Christmas bonus or the installation allowance that a particular judge could receive, this activity could quickly lose its innocent character as a purely administrative activity. At the other end At first glance, there are purely administrative tasks in the spectrum, such as the maintenance of court buildings, the awarding of restoration services or the normal maintenance and procurement management of a facility and a place of work. But borderline cases could also occur within this category. The payment of judges' salaries is a prime example of this. If this task were limited to the purely mechanical processing of fixed payroll statements, it would essentially be an administrative activity. Supervision of this activity could therefore fall under the responsibility of the supervisory authority designated under Article 51, paragraph one, GDPR. However, as soon as a discretionary element is added, such as deciding on the type of vacation or Christmas bonus or the installation allowance that a particular judge could receive, this activity could quickly lose its innocent character as a purely administrative activity.

From these examples, taken from the Advocate General's Opinion, which are able to convey which indirect areas of the court organization can have an influence on the independence of the members or decisions of the courts and are therefore to be understood as “judicial activity” in the broad sense, Nevertheless, a necessary connection between a measure and the core activity of judges, namely making decisions in pending legal cases, can be derived. Although there is no high demand for the strength and directness of this connection, a measure must also be able to indirectly influence case law, such as - undisputedly - the allocation of cases, but, as the Advocate General mentioned, possibly also concerning measures Meeting rooms, while meetings are taking place, the security measures mentioned, video streaming and publication of meeting dates and - undisputed - decisions, as well as salary components for judges that are at the discretion of the judicial administration.

However, in the light of the examples mentioned, the review complained about here as a measure of the supervisory authority in the office of the complainant, who is speaker XXXX in XXXX, cannot be carried out even if a broad interpretation of the term “judicial activity” in Article 55 (3) GDPR is applied such can be recognized. However, in the case of the investigation complained about here as a measure of the supervisory authority in the office of the complainant, who is the speaker in Roman XXXX in Roman XXXX, in the light of the examples mentioned, even if a broad interpretation of the term "judicial activity" in Article 55, paragraph 3, is applied, DSGVO no such can be recognized.

Accordingly, in the present case there is neither a judicial activity nor a matter of judicial administration to be carried out in senates, so that the complaint is not admissible in accordance with Article 130 Paragraph 2a B-VG in conjunction with Section 24a BVwGG in conjunction with Sections 84 and 85 GOG, and the complaint must be rejected. Accordingly, in the present case there is neither a judicial activity nor a matter of judicial administration to be carried out in senates, so that the admissibility of the complaint according to Article 130, Paragraph 2 a, B-VG in conjunction with Paragraph 24 a, BVwGG in There is no connection with paragraphs 84 and 85 GOG and the complaint must be rejected.

3.5. Regarding the rejection of the application for reimbursement of costs:

According to Section 85, Paragraph 5 of the GOG, the federal government is to be ordered to reimburse the complainant for the costs of the appeal in an affirmative ruling. According to Section 85, Paragraph 5 of the GOG, the federal government is to reimburse the costs of the appeal to the complainant in an affirmative ruling to impose on the complainant.

Since the complaint was not upheld with a finding but was rejected by a decision, the complainant's application for reimbursement of costs had to be rejected.

3.6. Regarding the omission of an oral hearing:

According to Section 24 Paragraph 1 VwGVG, the administrative court must, upon request or if it deems it necessary, conduct a public oral hearing ex officio. According to paragraph 24, paragraph one, VwGVG, the administrative court has upon request or if it deems this necessary considers to hold a public oral hearing ex officio.

According to Section 24 Para. 2 Z 1 VwGVG, the hearing can be omitted if the party's application initiating the previous administrative procedure or the complaint is to be rejected or it is already clear based on the file situation that the decision challenged in the complaint or the contested exercise of direct administrative authority orders should be repealed - and coercive power is to be declared unlawful.According to paragraph 24, paragraph 2, number one, VwGVG, the hearing can be canceled if the party's application or complaint initiating the previous administrative procedure is to be rejected or it has already been established based on the file situation that the with the decision appealed against is to be repealed or the contested exercise of direct administrative command and coercive power is to be declared unlawful.

Since the complaint had to be rejected, an oral hearing could not be held.

Regarding B) Admissibility of the revision:

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

The appeal is permissible in accordance with Article 133 Para. 4 B-VG because the decision depends on the solution to a legal question that is of fundamental importance because there is a lack of case law from the Administrative Court. The Administrative Court has not yet dealt with the interpretation of the term “judicial activity” in accordance with Section 85 Paragraph 1 GOG with regard to the question of whether this includes the production of handwritten notes and photographs of the workplace of an administrative court clerk Absence by a chamber chairperson or his/her deputy is understood to be due to suspicion of official misconduct. The appeal is permissible in accordance with Article 133, Paragraph 4, B-VG because the decision is based on the solution of a Legal question depends on which is of fundamental importance because there is a lack of case law from the Administrative Court. The Administrative Court has not yet dealt with the interpretation of the term “judicial activity” according to paragraph 85, paragraph one, GOG with regard to the question of whether this includes the production of handwritten notes and photographs of the workplace of a speaker of an administrative court whose absence by a chamber chairperson or his/her deputy is understood to be due to suspicion of official misconduct.